
    Frentress v. Mobley.
    1. Practice. A defendant answering to a petition can not, on the trial, insist upon evidence of facts not therein alleged.
    
      Appeal from Dubuque City Court.
    
    Saturday, June 9.
    
      Cooley, Blatehley $ Adams for tbe appellant.
    
      Wiltse, Friend § Jennings for tbe appellee.
   Lowe, C. J.

This case involves a single question of practice.

Tbe suit is founded upon two certificates of deposit, one calling for $300, tbe other for $350, both dated 31st July, 1858, payable to tbe order of J. B. Erentress, on tbe return of tbe same, assigned by him to plaintiff, and drawn by defendant, due December 10th, 1858, with ten per cent interest from 16th June. Tbe petition describes tbe certificates and alleges that they are due and still unpaid, and claims tbe aggregate sum of tbe two as the measure of bis damages, but avers no return of tbe certificates nor a demand of payment.

Tbe defendant answers and simply denies tbe allegations of tbe petition. On tbe trial no evidence was offered by plaintiff showing that tbe certificates were returned for payment, or that payment bad ever been demanded; and no excuse was shown or offered to be shown for a failure to return the same, and no other evidence was offered by tbe plaintiff than the certificates aforesaid.

Thereupon defendant, by his counsel, asked tbe court to instruct tbe jury that unless they found from tbe evidence, that tbe certificates in question bad been returned for payment, or that payment bad been demanded of tbe defendant, tbe plaintiff could not recover; which instruction tbe court refused to give, and this refusal is now assigned for error in this court.

The state of tbe pleadings required no such proof. The defendant having taken issue upon the allegations of the petition, admitted thereby that 'they constituted a cause of action, and he could not afterward insist that the plaintiff should prove facts de hors the record in order to make out his cause of action.

Affirmed.  