
    James Stewart, plaintiff in error, agt. Mynard Deyoe, defendant in error.
    
      Judgment affirmed.
    
    Judiah Ellsworth for plaintiff in error; A. Bodices for defendant in error.
   This was an action of trespass committed by defendant’s (Stewart) cattle upon the plaintiff’s (Deyoe) land. It appeared that the cattle passed over a partition fence, which had been divided for each party to erect and maintain; and that both divisions were out of repair; and it did not appear from the evidence which part the cattle passed over. Held, that the plaintiff was entitled to recover. The defendant, to excuse himself, was bound to show that the cattle passed over that portion of the fence which the plaintiff was required to maintain. Reported, 4 Denio, 101.  