¶1It was well understood upon the argument that Mrs. Shurtz, formerly Mrs. Smith, had received some $>1200 by AÚrtue of the judgment rendered in her favour in Shurtz v. Thomas, 8 Barr 359, and that her interest in the present suit Avas equal to what had already been paid to her by Thomas in that case, Harris, the nominal plaintiff here, being only trustee for her and the other heirs of James Smith. Concurring as I do in overruling the judgment in Shurtz v. Thomas, I would not alloAV her trustee to recover'for her again the moneys she has already received. I think Thomas is entitled to an equitable set-off to that amount. It is unpaid purchase-money for AA’hich he is defending, and he ought to be credited Avith Ayhat she has wrongfully taken out of his pocket.
¶2In this respect I would make a different application of the present ruling from that which the majority makes; as to all else in the judgment now rendered I fully concur.