delivered the opinion of the court.

The question involved in this case has been already twice decided by this court, and need not again be examined. The decisions will be found in 3 Howard, 578 (United States v. Prescott and others) and 11 Ib. 160 (Same v. Morgan and others).

It is insisted on the part of the defendants that as the plea was not demurred to, but went to issue, the evidence of the robbery supported it, and that the court was therefore right in admitting it and in giving the instructions to the jury. We are not advised as respects the system of pleading that may have been adopted in the court below, but whatever it may be it can hardly justify or require the court to give an instruction to the jury contrary to law, and especially when the plea itself, as it is called, constituted no defence to the action, but was frivolous and would have been stricken from the record as such on a proper motion in the court below. This plea in answer is but a notice of special matter by way of set-off, or abatement of the amount claimed against the defendants. It went only to part of the cause of action. To have constituted it a plea in bar of the action the amount beyond the sum lost should have been tendered and brought into court, setting up the theft as to the balance.

It is urged that no exception was taken to the ruling of the court at the trial; but this is a mistake. It was taken in express terms to the particular instruction in question.

It is also insisted that the motion for a new trial in the court below was a waiver of the exception. The practice is every day otherwise.

Judgment reversed and veniee de novo.