
    M. D. Whitesides v. T. J. Duncan et al.
    Pleading — Answer—Demurrer.
    The answer was held sufficient on demurrer, where it presented a good ground for abating the action, the same claim having been set up in another suit which was still pending, and plaintiff’s remedy ’ seems to be complete in the pending suit.'
    APPEAL, PROM SIMPSON CIRCUIT COURT.
    April 1, 1873.
   Opinion by

Judge Hardin :

The indebtedness of the estate of George W. Whitesides, being near $8,000 in excess of the personal assets in the administrator’s hands, and that fact having necessitated the suit of the administrators against the creditors of the decedent for a sale of the real es-state and the marshaling of assets, which 'then became subject to the control of the chancellor, it is difficult to see how the appellant, as surviving administrator, could have been guilty of a d'estraint in failing to pay the plaintiff’s judgment. But waiving this, we are satisfied the court erred in sustaining the demurrer to the amended answer which, if sufficient, as a bar to the claim, presented good grounds for abating the action, the same claim being shown to have been set up in the other suit which was still pending, and it appears that the appellee’s remedy was complete in that suit.

W. P. D. Bwsh, W. G. Whitesides, for appellant.

J. A. Firm„ for appellee.

Wherefore the judgment is reversed and the cause remanded with directions to overrule the demurrer as to the amended answer and for further proceedings not inconsistent with this opinion.  