
    John P. Sullivan v. S. K. Mallony.
    Pleading — Instructions—Facts Alleged in Petition Not Controverted, Taken as Confessed.
    A petition, on an account, charging rents upon land, for a stated period, imports an allegation that the lands were used for the time as charged and an 'answer which does not controvert this fact, is properly treated by the court as an admission, and an instruction predicated on this view is not erroneous.
    Appeal and Error — Record Incomplete.
    Where the record of a former suit between the same litigants is not copied in the record to the appellate court, it cannot avoid as grounds for an objection insisted on for the appellant that the cause of action was barred by a previous judgment.
    APPEAL FROM TODD CIRCUIT COURT.
    January 17, 1868.
   Opinion of the Court by

Judge Hardin :

As no record of any former suit between tbe parties is incorporated in the record in this case, there is no apparent ground for the objection, insisted on for the appellant, that the cause of action was barred by a previous judgment.

The account referred to in the original petition as the foundation of the action charges the appellant with rent from the 25th day of February, 1860, to the 1st of January, 1863, and we think this account, with the amount of indebtedness in the petition referring to it, charging imports an allegation that the defendant used the premises from said 25th of February, 1860, to the 1st of January, 1863, and as the answer did not controvert ’this fact, the court properly treated it as admitted by the pleadings, and the instruction predicated on this view was not erroneous.

The bill of exceptions stating the action of the court as'to instruction does not appear to have been signed by the court, but waiving this objection, we do not perceive any error to the appellant’s prejudice in the ruling of the court in relation to instructions.

The verdict, seems to have been authorized by the evidence certifled in the record, but if it was not, it is not stated in the bill of exceptions that that was all the evidence in the cause.

Petrie & Bibb, for appellant.

Kennedy, for appellee.

Wherefore, the judgment is affirmed.  