Samuel Nelson

“ 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. ”