This case comes before us on appeal. The defendant pleaded in abatement the interest of the magistrate before whom the writ was returnable, which was traversed by the’ plaintiff in his replication. Judgment was rendered for the defendant from which the plaintiff appealed.
*202At nisi prius, on appeal, no evidence was offered. The defendant had alleged by his plea, the interest of the magistrate, before whom the writ was returned. The burden was on him to show the existence of this alleged interest. In the entire absence of proof on the subject, it was not for the court to presume its existence. It was not proved by the mere fact of the defendants having filed a plea alleging it did exist. Exceptions overruled.
Walton, DioKerson, Barrows, Yiegin and Petees, JJ.,. concurred.