This case falls, perhaps, within those of Lindley v. Dakin, at this term (1), and Allen v. Lee, 1 Ind. R. 58, as modified and explained by Medler v. Hiatt, 8 id. 171. But if not, an award barred.
J. S. Reid and J. F, Gardner, for the appellant. J. Yaryan, for the appellee.The submission to arbitration of the question of damages for an admitted incumbrance upon' property sold as free of incumbrance, is not within the prohibition of § 2, 2 R. S. p. 228.
A prior suit pending for a set-off, would prevent its being pleaded to a subsequent. Rankin v. Halpin, 4 Ind. R. 585.
The judgment is affirmed with 1 per cent, damages and costs.
Ante, 388.