delivered the opinion of the court.

This cause was submitted at the last term of this court, but reserved upon a motion for rehearing. The simple ground assumed by the motion is, that no motion for a new trial was made in the court below. An examination of the bill of exceptions proves the assumption to be correct. The error complained of is really matter of exception, and can only be reviewed here after an unsuccessful motion for a new trial. The cases of State v. Marshall, 36 Mo. 400; Bateson v. Clark. 37 Mo. 31, and State to use, &c. v. Matson et al., *41738 Mo. 489, are referred to as settling all the questions that can arise in this case.

The judgment must therefore be affirmed.