delivered the resolution of the court as follows. “ The court is of opinion that though the plaintiff did not, by her replication to the defendant’s plea of equitable set-off, waive her exception to the decision of the circuit superior court allowing said plea to be filed, nor consequently her right to have the propriety of that decision examined in this court, yet the said plea was properly received by the said circuit superior court, notwithstanding the plaintiff’s objection thereto; this court being of opinion that the 62d section of the act of the 16th of April 1831, establishing the circuit superior courts, allowed the equitable defences therein provided for, in all actions at law pending in such circuit superior courts at the time of pleading the same, whether such actions were originally brought in such circuit superior courts, or had been transferred thereto, under the provisions of said act, from the former superior courts of law therefore,
Judgment affirmed, with costs in the court of appeals, to be levied &c.