
    Dunsmore v. Elliott.
    Affirmative matter stated ia aa answer, if not denied, is to tie taken as true, and need not be proved.
    
      Appeal from the Polk District Court.
    
    This suit was commenced before a justice of the peace, on a promissory note payable to one Laning or bearer. Tbe ■defendant appeared and filed an answer, denying tbe indebtedness, and setting up that said note was given as the difference in tbe exchange of horses; that Laning represented his horse to be sound, and worth one hundred dollars, and warranted him sound in every particular; that defendant relied upon the representations, and that the horse was diseased and wholly worthless; tbat said note was obtained by fraud, and tbat plaintiff bad knowledge thereof; that plaintiff did not own said note, and that the same came into his bands after it became due. To this answer, there was no replication. Judgment having been rendered in favor of defendant, tbe plaintiff appealed. On tbe trial in tbe District Court, it appears, that tbe only testimony offered by either party, was tbe promissory note. Tbe court instructed tbe ■jury, that tbe answer of tbe. defendant, not being replied to, ''was to be taken as true, as to every affirmative allegation therein contained. Verdict and judgment for defendant motion for new trial overruled, and plaintiff now appeals.,
    
      Madison Young, for tbe appellant.
    
      Knapp & Caldwell, for tbe appellee.
   Wright, C. J.

It will be observed, that this answer specifically sets up affirmative matter, wbicb, if true, was a complete defence to tbe note. Not being denied, it was to be taken as true. Code, §§ 2284,1742. If these sections have any meaning or purpose, tbe defendant7» case was as completely made out by this pleading, as if be bad introduced ever so much evidence.. Why should be be required to prove that wbicb tbe law treats as admitted, if undenied?’ If there bad been any pretence of denial, though imperfectly stated, it would raise a different question. But neither tbe entries on tbe justice’s docket, dr any other part of tbe record, show that any response was made to this answer. Under such circumstances, we are clear that tbe instruction given by tbe court below, was correct. This being tbe only error complained of,- tbe judgment is affirmed.  