The action of Collins v. Sherer, for the work and material referred to, must have proceeded on the ground that he was not obliged to apply the amount due to him in payment of the note, but might recover for it without regard to the note. Upon the testimony of Morse uncontrolled, it appeared that tne note had not been applied in that action towards the payment of Collins’s claim; and it followed that the claim could not be applied in this action in payment of the note. The instruction to the jury was correct. Exceptions overruled.