delivered the opinion of the court.

Upon the trial of this cause three instructions were asked by defendant, and refused by the court, and such refusal is the main reason assigned in the motion for a new trial. It does not appear from the bill of exceptions that any exception was taken to the opinion of the court in refusing the instructions asked.

The exception should be taken at the time the instruction is given or refused, and, if not so taken, this court will not pass upon the action of the court below. In reference thereto, in Powers v. Allen, 14 Mo. 367, it was held that a party could not, in a motion for a new trial, avail himself of an erroneous instruction unobjected to at the time given.

The judgment will be affirmed,