delivered, the opinion of the . , . court. 1 he plaintiffs claim $4,732 4, the nett *616proceeds of fifty hogsheads of tobacco, sold ' , " , , r. , tor them by the defendants.

The answer admits the defendants received hogsheads of tobacco of the plaintiffs, whicfa they sold, according to the instructions ^after’ an(^ remitted to them a draft of E. Fiske, for $4,732 4, the nett proceeds.

The plaintiffs were nonsuited and appealed.

It appears that the case was submitted to the district judge, on the petition and answer. He thought the plaintiffs had not made out their case, and'could not recover without using the answer in evidence; and if they did, this document, with the admission of the debt, contained an averment of payment, which could not be separated from the admission.

We are of opinion that the allegations of the petition, so far as they went to establish the sale of the tobacco by the defendants, for the plaintiffs, not being denied by the answer, the latter were not under any obligation to administer evidence of it.

The answer denied the liability of the defendants, on the ground that they sent the plaintiffs a draft in payment. It does not even allege that this remittance was made by *617order of the plaintiffs. Even if it did, this circumstance ought to have been proved; tor every fact, not admitted in the petition, advanced by the defendant, is, according to our practice (which does not admit of a replication) held to be denied by the plaintiff

The court, in our opinion, erred in non-suiting the plaintiffs; and as on this being done, the defendants could not well have introduced evidence in support of their averment, we cannot well give a final judgment.

It is therefore ordered, adjudged, and decreed that the judgment be annulled, avoided, and reversed, and the case remanded for trial,

the defendants and appellees paying costs in this court.