Mr. Justice Barnesdelivered the opinion of the court.
3. Appeal and error, § 594*—when motion for new trial preserves no question for review. In an action tried without a jury, a motion for a new trial preserves no question for review. 4. Assumpsit, action of, § 41*—when money voluntarily paid not recoverable. Money voluntarily paid with full knowledge of all the facts and without fraud, duress or extortion cannot be recovered back although paid under a mistake of law. 5. Pleading, § 117*—when offering evidence of set-off constitutes admission of terms of contract. In an action to recover on a written contract, where defendant pleads set-off, the act of defendant in offering evidence tending to prove his set-off involves a recognition of the terms of the contract. 6. Appeal and error, § 578*—when lack of exception to judgment does not prevent consideration of sufficiency of evidence. The absence of an exception to a judgment, in a trial without a jury, does not preclude consideration of the sufficiency of the evidence to sustain it.