After the above action of Hardin v. Hardin was commenced, but prior to decree rendered, the administratrix of F. M. Trimmier commenced this action against William Hardin to recover on the note of $1,200. The defence was “former suit pending,” but, under the charge of the Circuit Judge (Fraser) the verdict was for plaintiff, and this judgment was affirmed on appeal. Mr. Justice McGowan thought that in the first case there could have, been no decree for foreclosure as between the co-defendants, and therefore there was no such other prior, action pending as to defeat the recovery on the second action on the note. In this view Mr. Ohiee Justice Simpson concurred.. Mr. Justice McIver concurred in the result upon the ground that this issue was not involved in the former action, inasmuch as Trimmier’s answer was not served on William Hardin.

Judgment affirmed.