OniNioN op the Court by

The answer of defendant below was not an off-set or counterclaim, but presented an issue in bar which by the provisions of the Civil Code stood denied except so far as confessed by the statements of the petition; therefore it was not only unnecessary to reply, but no such pleading is known to the Code.

There was some contrariety of evidence; therefore, the jury should have been permitted to find on it without a peremptory instruction from the court to find for plaintiff.

It was erroneous to give the peremptory instruction, which was not cured by the following instruction, though they seem to be inconsistent.

As the judgment must be reversed for this error, it is unnecesssarv to say anything as to the discovery of the evidence after the trial.

Wherefore, the judgment is reversed, with directions for a new trial.