
    H. C. Howard v M. Murphy.
    Pleadings — Answer—Offset—Counter Claim — Issue in Bar.
    The answer of the defendant was not an offset or counter-claim, but presented an issue in bar, which by the provisions of the Civil Code, stood denied except as conferred by the statements of the petition.
    Contradictory Evidence — Peremptory Instruction.
    Where .there is a contrariety of evidence the jury should be permitted to find on it without a peremptory instruction.
    APPEAL PROM MONTGOMERY CIRCUIT COURT.
    July 1, 1867.
    Holt, for appellant.
    
    Tenney, for appellee.
    
   Opinion op the Court by

Judge Williams:

The answer of defendant below was not an offset 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 as couched in the language of the first 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 unnecessary to say anything as to the discovery of the evidence after the trial.

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