¶1— We can perceive no error, of which the defendant has any cause to complain, in the decision on the demurrer. If the plea is to be considered as available, the replication was strictly formal and re-*169guiar, as it only asserted affirmatively, what was denied by the plea; and thus a proper issue was formed. The plea itself was insufficient, under the decision made in the case of the State vs Middleton, at the last term, and if it had been demurred to, must have been so pronounced ; but as issue has been taken on it, the defect cannot now be examined—Hazard vs Purdom, (3 Porter, 43.) What would have been the effect of a motion on the part of the State to award a repleader, is a question which does not arise, and as to which, no opinion need be pro* nounced.
¶2The State having elected to tender an issue to the country, on an immaterial plea, must, if the affirmative lies on it, — sustain the issue by proof, as in other cases; and it is therefore necessary to ascertain if the facts shewn in evidence warrant the judgment of the court on the demurrer to evidence. The records introduced, established nothing more, than that the sheriff, and previous to the court, returned the name of McCreight, as a householder or freeholder -; but this return could not be conclusive, nor even prima facie evidence, that the fact was so. But it is said that the State was not obliged to sustain the issue by any proof, — that it is not allowable for a defendant thus to cast the onus of sustaining the prosecution, on the State. It is undeniable, that in all matters of pleading, the averment of an affirmative fact, by a party, renders it necessary for him to support it by evidence, unless the law presumes its existence. We are not aware that any presumption arises here, that the individual was qualified, as asserted by the replication; and it certainly was not such a fact as the defendant *170could be called on to disprove, as it -would, in most cases, be barely possible to establish negatively, that McCreight was not a freeholder or householder. Nor is the argument sustainable, that the facts are equally within the know-lege of both parties. If they exist, they can surely be shewn by the State more easily, and with more certainty, than the defendant can establish the negative.
¶3We, therefore, think it was erroneous, to render judgment on the demurrer to evidence for the State, and for this error, the judgment must be reversed; but no judgment can be here entered, because the issue is wholly immaterial.
¶4The case must be remanded to the Circuit court, with instructions to award a repleader.