15 Mo. 289 | Mo. | 1851
delivered the ,g,pinion qf (the .cojurji,
In this case the judgment must be reversed, and ti;e only ground upon which it is reversed, is, the giving of . the . sixth instruction, p) these wordst “All averments in the petition, not denied in t]h.e answer, are to he taken as admitted, but every averment in the petition ;wh(ich jg «denied, is .not evidence, nor is the denial of the averment in thje answer evidence, hut all averments when denied and the denials also, ai’e to be supported by proofs, or, disregarded by the jury.”
It ¡has.already been decided, at this ierm/in the c^se of Butcher vs. Death & Teasdale., that it is the duty of the .court to tell the jury what facts, stated in the petition, arettobe, taken as admitted, because the defendanfhas failed to deny them; and that it is e.rr.or for the ¡court to leave to the jury iSihe task of sifting the pleadings to find what facts are stated -on-one side ¡and specifically denied ,on the other, go as,£9 make an issue, which they are to determine by- the evidence.