OPINION By the Court:
It appearing in the record here to be conceded as a fact that in the action of Casey v. McCreary the equitable defense interposed by the latter was virtually dismissed without being presented to or considered by the Court in rendering the judgment on that case, the judgment so rendered is not a bar to this action; the Court below therefore did not err in granting a new trial, and (without expressing an opinion as to the sufficiency of the complaint--a question which though argued by counsel is not involved in the appeal) the order is affirmed.