author: English, C. J.

text:
    Apperson, Ex’r, vs. Bolton et al. Bolton vs. Sigler and wife.
    1. Conflict of Law : Lex rei sitce controls the alienation and descent of land.

    The alienation and descent of real estate is governed by the laws of the state or country in which it is situated.
    2. — Bight of dower subject to the lex rei sitce.

    The right of the widow in the lands of her husband; the time and manner of assigning, and the causes that may defeat her dower, are all determined by the laws of the state in which the lands are situated.
    3. Wills : When a provision for the wife held to be in lieu of dower.

    Where a testator makes a provision for his wife, and proceeds to dispose of all the remainder of his property, it will be presumed that the provision was intended in lieu of dower.
    4. Conflict of Law: Effect of a will made and admitted to probate in another state.

    A will which was executed and admitted to probate in Tennessee is as valid to dispose of real estate situated in this state, as if made and admitted to probate here.
    5. ■ — Election of widow to renounce a provision and take dower, controlled by the lex rei sitm.

    The right of a widow to renounce the provisions of a foreign will and take dower out of the lands of her deceased husband, situated in this state, is governed by the laws of this state, and the proceeding must conform to our statute.
    6. Foreign Executor: Source of his authority, and when he may sell Arkansas lands.

    By the provisions of a will made in Tennessee, the executor was authorized to sell the lands of the testator in that and other states. Held, 1st, when the will was properly probated in Tennessee, and letters testamentary granted, the will, and not the letters, was his authority to sell the land; the letters were merely evidence of the authority conferred by the will; 2d, he could not sell the Arkansas lands under the will until it was admitted to probate and recorded in this state, but it was not necessary for him to take out letters here in order to sell.

      7. Foreign Executor and Domestic Administrator: Bight to the land.

    Where a will is made and probated in another state, and an adminis trator is appointed in this, lands situated here are assets in the hands of the administrator for the payment of domestic debts, and the foreign executor cannot disturb his possession for the purpose of selling them, until such debts and the cost of administration are paid.
    APPEALS from Desha Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.
    Hutchinson, for Apperson.

      Bose, for appellant.

      Weatherford, for Mrs. Sigler.

      Pindalls, for Bolton.
   English, C. J.

These are separate appeals and separate transcripts, but they are, branches of one original suit in the court below. The first appeal involves the right of Mrs. Sigler to dower in the Arkansas lands of Isaac L. Bolton, deceased. The second appeal grew out of a contest between E. M. Apperson, a Tennessee executor, and Seth W. Bolton, an Arkansas administrator, for the control of the Arkansas lands of Wade H. Bolton, deceased. This appeal also involves the dower right of Mrs. Lavinia A. Bolton in the same lands.

The original bill, from which the litigation in its several branches sprung up, was filed by Wade H. Bolton, in his life time, on the 9th of February, 1869, in the Desha circuit court, against the representatives of Isaac L. Bolton, for partition of lands owned by them jointly in Arkansas. During the pend-ency of the suit in the court below, Wade H. Bolton died, and E. M. Apperson qualified as his executor in Tennessee, and Seth W. Bolton was appointed administrator of his estate in Arkansas.

The lands were partitioned by the final decree, rendered November 2,1871, and dower decreed to Mrs. Lucinda Sigler, widow of Isaac L. Bolton, who had, after his death, intermarried with Wm. A. Sigler, in the share of the lands partitioned to him, and from this branch of the decree, Seth W. Bolton, who claimed the lands as devisee of Isaac L. Bolton, appealed.

The court decreed to Seth W. Bolton, the Arkansas administrator of Wade H. Bolton, the control of the share of the lands partitioned to him, and awarded to Mrs. Lavinia A.'Bolton, his widow, an absolute estate in one-half of his sháre of the lands for her dower.

From this branch of the decree E. M. Apperson, the Tennessee executor of Wade H. Bolton, who had been substituted as plaintiff in the original bill, procured the allowance of an appeal from the clerk of this court.

I. We will first consider the questions arising upon the appeal of Seth W. Bolton, from so much of the decree as allowed ■dower to Mrs. Sigler in the lands of Isaac L. Bolton.

The facts material to be stated on this branch of the case are in substance as follows: Isaac L. Bolton and Wade H. Bolton, who weie both citizens of Shelby county, Tennessee, and died there, were the joint owners of a large plantation situated in Desha county, Arkansas, called the Beleoe Lake place, and Isaac L. Bolton was also the owner of one-half of a small place, situated in the same county, known as the Graves place. It was for partition of the Beleoe Lake place that Wade H. Bolton filed the original bill. Isaac L. Bolton made his will'at his home in Shelby county, Tennessee, on the 9th 'of October, 1863.

The second item of the will was as follows:

“I give to my wife, Lucinda Bolton, five thousand seventy-seven dollars and .fifty cents in gold, that I have already given her, which comes in as a valuation to her of that amount, and change to her out of :my estate, which amount of money 'went into her possession some ten days ago, and charged to her in my valuation book.”

By the third item, he gave to his daughter, Louisa Dickens, lands, slaves and other property, valued at $17,940.

In the fourth item, he states that he had given to his daughter, Josephine Dickens, lands, slaves, etc., valued at $12,075, then adds—

“ The balance of my property in Tennessee, both real and personal, I wish sold by my executor, and proceeds delivered unto my two daughters, Wade and Loucassia, until they reach in valuation the amount that Louisa has had. Also, Josephine to be brought up in valuation to Louisa. My wife, Lucinda Bolton, after valuing to her the $5,077.50, already given to her by me, is to have property valued to her until her valuation reaches fifteen thousand dollars, which property is in loan to her for her support during her widowhood or natural life. But whenever she marries, this property to go to my legal heirs. But should she never marry, this property to be hers, or in use for her, during her natural life, then to descend to my legal heirs. * * * I give to my son, Seth W. Bolton, my entire interest, both real and personal, in Desha county, Arkansas, by his paying to my estate, or other heirs, the $15,000 I have paid for the places, with the exception of my interest in the Graves’ place, the proceeds of which I want appropriated, after selling it, to my other heirs. After all my children be equal to Louisa, then the balance of my estates, if any, to be equally distributed amongst my children, the valuation of negroes to be equalized.”

Some of his slaves, which are named, he desired his executor to set free, on account of their fidelity, and one of them particularly, because of her devotion to him when the “jay-hawkers ” were after him. The balance of his servants, he wished his executor to ship to Cuba, or some other bad place, o n account of their devotion to Abraham Lincoln.

He named Wade H. Bolton as his executor, who, it seems, did not qualify.

Isaac L. Bolton died some time in the year 1864, and his will was proven and admitted to record in the county court of Shelby county, Tennessee, Jan. 3,1865 ; and Francis M. Cash was afterwards appointed administrator with the will annexed.

The answer of Sigler and wife (formerly Lucinda Bolton) to the original bill was made a cross-bill, and filed April 27, 1869. They aver, after admitting the allegations of the bill, that Isaac L. Bolton and Lucinda were married in 1863 [she was his second wife] and lived together as husband and wife in Shelby county, Tennessee, until his death, which occurred in the year 1864. That he made a will, which was duly probated, etc., which was made an exhibit to the original bill, the substance of which is above stated.

That Lucinda elected to dissent from the provisions made for her therein, in lieu of dower, and proceeded to do so in legal form; in proof of which a transcript from the records of the county court of Shelby county, Tennessee, and a transcript from the records of the first chancery court of the same county, were referred to, which will be more particularly noticed below. It was further averred in the cross-bill, that said Lucinda was not required to elected whether she would take the bequest made to her in the will, or dower in Arkansas, until the probate of the will in Arkansas, which was only done during the then present year (1869).

That no administration had ever been applied for, or granted, upon the estate of Isaac L. Bolton, in Arkansas.

That Francis M. Cash had been appointed administrator in Tennessee, and paid all his debts, etc. Prayer for dower in the Arkansas lands, etc.

In the answer of Seth W. Bolton to the cross-bill of Sigler and wife, he denies that said Lucinda is entitled to dower in the Arkansas lands of Isaac L. Bolton, deceased, because he made a pecuniary provision for her in his will, which was intended to be, and was, in lieu of dower in his lands, etc. Avers that she did not enter upon said lands, or commence proceedings for the recovery or assignment of dower therein, within one year from the death of said Isaac L. Bolton ; and submits that she is conclusively deemed to have elected to accept the provisions made for her in the will, and to have waived her right to dower in said lands, etc. He also avers that she had been fully endowed of the lands of her said husband by the probate court having jurisdiction of said estate.

On the hearing, Sigler and wife offered in evidence a paper purporting to be a transcript from the records of the county court of Shelby county, Tennessee, showing that on the 3d of January, 1865, on the application of Lucinda Bolton, widow of Isaac L. Bolton, commissioners were appointed to allot and set apart from the estate of said Isaac L. Bolton, one year's support for said widow and her family; also to assign and set apart to her, by metes and bounds, one-third part of the lands of said deceased as dower to and for the said widow, and that they report to the next term of the court, etc. This paper was made exhibit A to the original bill, and referred to in the cross-bill of Sigler and wife. On the objection of Seth W. Bolton, the court refused to permit this paper to be read in evidence, because the certificate of authentication was not signed by the clerk of the court, etc*

Whether the court below erred in excluding this transcript need not be decided, inasmuch as the decision was in favor of Seth W. Bolton, who is the appellant in this branch of the case.

Sigler and wife were permitted to read in evidence, against the objection of Seth W. Bolton, a transcript from the records of the first chaneery court of Shelby county, Tennessee, duly authenticated.

Erom this transcript it appears that on the 15th of October, 1867, a petition for dower was filed by Sigler and wife in a. cause then pending in that court, styled Josephine Dickens v. Samuel Dickens et al. In this petition it was stated, in substance, that Lucinda Sigler was the widow of Isaac L. Bolton, who died in the-year-1864, in Shelby county, having made a. will, by which he disposed of his large and valuable estate.

That she had dissented from- the will, and dower had not-been assigned, although she had been residing on part of the-land, with a general understanding that as the part occupied was less than her dower right, she would be compelled to pay no rent. That all the parties in interest were before the court, and were willing that her dower should be assigned without-delay in that cause. That the testator (Isaac L. Bolton) left his home place, 1801 acres, interests in town lots, other large and valuable interests in real estate in Shelby county, besides-valuable lands in Arkansas. That the land on which his daughter Louisa was residing was part of his estate, containing 520 acres, and was very valuable. Prayer for reference to-the master to ascertain and report what lands testator died seized and possessed of, and out of which petitioner, Lucinda, was dowable; and that dower be assigned her on the coming-in of the report.

The court made an order of reference, as prayed, and directed the master also to enquire whether, as alleged in said petition, said Lucinda had dissented from the will, and was entitled to dower as claimed. The master made his report on the 16th of November, 1867. He found that said Lucinda was the widow of Isaac L. Bolton, deceased, and that she dissented from his will.

States and describes the lands of which he died seized and possessed in Shelby county, and that he also owned some lands in Arkansas, the quantity and value not known.

Also states the facts in relation to the claim of his daughter Louisa, to the land occupied by her, etc.

No exceptions being made to the report, it was confirmed.

Then follows the decree of the court, thus: — “And it appearing from said report, and the proofs in the cause, that Isaac L. Bolton died in the county of Shelby, Tenn., in 1864, leaving the petitioner in this application for dower, his widow, and that she has since intermarried with W. A. Sigler. That said Bolton disposed of his estate by last will and testament. That said widow, not being satisfied with the testamentary provisions in her favor, dissented, in accordance with the law governing such cases, and that by virtue of such dissent, as shown, she is entitled to dower out of the real estate of which the said Bolton died seized and possessed,” etc.; and proceeds to decree her dower in the Shelby county lands and lots described in the master’s report, and to appoint commissioners to lay it off to her, reserving for future determination the question of her right to dower in the land claimed by Louisa, etc., and adding: “ That nothing in this decree shall be held to preclude the right of said Lucinda to apply to the proper tribunal in the state of Arkansas for dower out of the lands that said Bolton died seized and possessed of in that state.” Afterwards, the commissioners, appointed to lay off the dower, made their report, which was confirmed, etc.

Erom a bill of exceptions, taken by Seth W. Bolton, at the hearing in the court below, it appears that the court found the facts to, be, that Isaac L. Bolton died in 1864, seized of the lands in Desha county, in controversy, leaving said Lucinda his widow, etc. That he left a will which was duly probated in Shelby county, Tennessee, the place of his domicile, and that his widow elected to take dower instead of tbe provision made for her in said will in lieu of dower. That said election was made as required by the laws of Tennessee, where the said Isaac L. Bolton died, and where his will was made. That she did not enter upon said Arkansas lands or commence proceedings to recover the same, or have her dower assigned, or execute or record any relinquishment of the provisions made for her in lieu of dower before the filing of her cross-bill in this case.

The court declared the law to be, that the laws of Tennessee must govern in the manner and time of the widow’s election to take dower.” And refused to declare the law to be: “ 1. That the laws of Arkansas must govern in the manner of election. 2. That unless the widow entered upon the land, or commenced proceedings for the possession, or for the assignment of dower within one year after the death of her husband, she would be conclusively presumed to have accepted the provisions of the will.”

The aleniation, transmission and descent of real estate is governed by the laws of the country or state in which it is situated. This rule is general, and there is no diversity of opinion about it. So, the general rule is, that the right of dower in real estate is governed by the locus rel slice. The widow has dower, not by the law of the place of the marriage nor of the domicile, but according to the law of the place where the particular lands are situated. The laws of Louisiana do not give dower, yet, if a marriage be contracted in that state, or if the husband and wife be domiciled there, and the husband die, leaving lands in Arkansas, the widow may have dower of those.lands according to the laws of this state.

So, if they are domiciled in a state where dower is restricted to the lands of which the husband died seized, as in Tennessee, and the husband own lands in a state where the rule of the common law prevails, as in this state, the widow will be entitled to dower according to that rule, in all lands of which he was so seized during the coverture, except so far as she has relinquished her right, or is otherwise lawfully barred. The extent of the rights of the widow in the lands of her husband is determined entirely by the laws of the state where the lands are situated. Garland, Adm’r, v. Rowan, 2 Sm. & Mar., 617 ; McCormick v. Sulivant, 10 Wheat., 202 ; 2 Scribner or Dower, 24; Story Confl. Laws, secs. 448, 454; Duncan v. Dick, Walker (Miss.), 288; Jones v. Gerock, 6 Jones’ Eq., (N. C.) 190.

It may be affirmed, says Judge Story, without hesitation, that independent of any contract, express or implied, no estate can be acquired by operation of law in any other manner, or by any other means, than by the locus rei sitae. Thus, no estate in dowry or tenancy by the curtesy, or inheritable estate, or interest in immovable property, can be acquired, except by such persons, and under such circumstances, as the local law prescribes. Confl. Laws, sec. 448.

Isaac L. Bolton was domiciled in Tennessee; he made his will and died in that state, but his widow, Mrs. Sigler, sought by her cross-bill to have dower assigned to her in his Arkansas lands. Her right to dower, its quantity, the mode of assigning it, the time within which her application must be made, and the causes which may defeat it, must all be determined by the laws of this state, in which thp lands, in which she claims dower, are situated.

The provisions of the dower statute of this state, in force when Isaac L. Bolton made his will, applicable to or bearing upon the question before the court are as follows: “ If land be devised to a woman, or a pecuniary or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the land so devised, or the provision so made, or whether she will be endowed of tbe lands of her husband.” Gantt’s Dig., 2222. “When a woman shall be entitled to an election,” etc., (under the preceding section), “ she shall be deemed to have elected to take such * * * devise or pecuniary provision, unless, within one year after the death of her husband, she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or.assignment thereof.” Id., sec. 2223. See also, secs. 2234-5, 6, 7.

It is not expressly stated in the will of Isaac L. Bolton that the provision made therein for his wife was to be in lieu of dower, but such was manifestly the intention of the testator, for it appears upon the face of his will that after making provision for his wife, he otherwise disposed of the entire remainder of his estate. Looking at the face of the whole will, any inference that he intended her to have the provision made for her and dower also is excluded by its provisions. 2 Scribner on Dower, 455, etc.

That the will was duly executed, admitted to probate in Tennessee, and also in this state, is conceded by the cross-bill of Mrs. Sigler.

The will was therefore as valid to dispose of real estate of the testator situated in this state, though made in Tennessee, as if made and admitted to probate in Arkansas. Gould’s Dig., ch. 180, sec. 36, 37; see also Code provision, Gantt’s Dig., sec. 5784.

Mrs. Sigler does not claim that she elected to take dower instead of the provision made for her by the will, within the time, nor in either of the modes prescribed by our statute. She avers, and it may be conceded that she proved that she made her election in Tennessee, and it may also be conceded that such election was made within the time and in the mode prescribed by the laws of Tennessee, though the laws of Tennessee on this subject were not proven at the hearing of the cause in the court below.

Her husband died in 1864, her cross-bill for dower in the Arkansas lands was not filed until April 27, 1869. She alleges that she was not bound to make her election until the will was probated in Arkansas, which was not done until the year 1869. But, whatever may be the law of Tennessee, our statute required her to make her election within one year after the death of her husband, and a widow must make her election within the time prescribed by law. 2 Scribner on Dower, 473; Palmer v. Voorhis, 35 Barb., 482.

Her election had to be made in one of the two modes provided by the statute: Eirst, by entering on the lands to be assigned to her for dower. This she could not do in Tennessee, because the lands were situated in Arkansas. Second, by commencing proceedings for the recovery or assignment of her dower in the land. This she could only do in the courts of Arkansas, for the Tennessee courts could have no jurisdiction over lands in Arkansas. But it has been suggested that if a dissent in Tennessee is not a valid dissent in Arkansas, an acceptance of the provisions of a will in Tennessee would not be binding here; and that if Bolton had devised to his wife his whole estate in Tennessee, no matter how large, she might have accepted it, and then dissented in Arkansas, and claimed dower in the estate here. But we think, though the point is not before us, that she would not be permitted to do that, for it is a general principle of law that one cannot claim under a will and against it too, and an acceptance of the provisions of the will in Tennessee would bind her every where. Jones v. Geroch, 6 Jones Eq. (N. C.), 194; Blunt et al. v. Gee et al., 5 Call (Va.), 492.

The time allowed a widow to make her election between a provision made for her by will, and dower, varies in the diferent states. The statutes of some of the states allow a shorter, and of others a longer time than ours. 2 Scribner, 475-6.

Erom motives of public policy, it may be supposed, our statute requires tbe election to be made within one year after the death of the husband. The Revised Statutes of Indiana, it seems, omit to fix the time within which the widow shall elect, and it is held in that state that she may make her election at any time, and that lapse of time will not affect her right to take under the law. 2 Scribner, 477; Piercy v. Piercy, 19 Ind., 467.

Now suppose a man domiciled in Indiana, and having an estate there, and also an estate and owing debts in Arkansas, make provision for his wife by his will in Indiana, and five years after his death she elects to claim dower in his estate there, and then applies for dower in his Arkansas estate, having made no previous election here. In the meantime letters of administration may have been taken out upon his estate here, the lands sold to pay debts, and the administration closed. Our courts would hardly allow her dower, upon her late Indiana election, against the purchasers of the lands at the administrator’s sale.

In some of the states, and we believe in Tennessee, a widow is allowed a year to dissent after the probate of the will. A failure to probate the will for a .number of years after the death of the testator, might produce the result in Arkansas as above indicated.

Our conclusion is that Mrs. Sigler was barred of her right of dower in the Arkansas lands. The decree of the court below in her favor must be reversed, and the cause remanded with instructions to the court to dismiss her cross-bill.

II. On the appeal of Apperson, Ex’r, etc. On the 10th of August, 1868, Wade H. Bolton made his will, at his home plantation, in Shelby county, Tenn. He devised $5,000 to Seth.,W. Bolton, on condition that he aided in defending a suit pending against him and the estate of his brother, Isaac L. Bolton, the father of Seth, in the chancery court of Shelby county, prosecuted, as it is repeatedly stated in the will, by “Old Tom. Dickens, and his ally, Sarah W. Bolton.” He made other money devises, and among them, $10,000 to the widow and children of Stonewall Jackson; provided for the establishment of a free school for the education of the poor^ and made gifts to a number of bis former slaves who had been faithful to him. The whole will is a curiosity, but the only clause material to this controversy is the 15th, which is as follows:

“ I hereby instruct my executor, if he thinks best, to sell all my real estate in Tennessee, or any other state, everywhere, together with my Hoboken farm, where I reside, reserving the dower of three hundred acres given to my wife [Lavinia A. Bolton], her lifetime.”

He appointed E. M. Apperson, of Memphis, his executor, without security. At the end of the will, as it appears in the record before us, is this evidence of probate:

“ Proven at the August term, 1869, and ordered to be recorded. Recorded August the 9th, 1869.” Signed by the clerk of the county court of Shelby county. Letters testamentary were granted to Apperson 10th of August, 1869.

At the time Apperson was substituted as plaintiff in the original bill, October 28, 1869, he filed a certified copy of the will and of his letters testamentary. On the 27th April, 1870, Apperson filed a supplemental bill, in which he stated that Seth W. Bolton • had been discharged in bankruptcy, and purchased at a sale made by his assignee, all the interest he had in the land described in the original bill, etc. Also that Seth W. Bolton had recently qualified in the probate court of Desha county, Ark., as administrator of the estate of Wade H. Bolton, deceased; and he makes him a defendant, as such administrator, and prays as in the original bill.

In the meantime, on the 11th of February, 1870, Seth W. Bolton, as administrator of Wade H. Bolton, deceased, filed a bill for injunction against E. M. Apperson, in the Desha circuit court, in which he alleged in substance:

That Wade H. Bolton died possessed of interests in lands in Desha county, which were the subject of litigation in a suit pending in the Desha circuit court to determine the extent and value of his interests, etc.; that plaintiff was the duly appointed administrator of the estate of said Wade H. Bolton, and as such, entitled to have control of and administer his estate in Arkansas; that one claim of $1,200 in favor of Oscar F. Parish, a citizen of Desha county, Ark., had already been exhibited, allowed and classed against said estate in the probate court of Desha county, and plaintiff was informed that there were other claims due to citizens of Arkansas against said estate yet to be exhibited, the amount and nature of which were unascertained, and that there were no other assets in this state for the payment of said claims except the interests of said Wade H. Bolton in said lands.

Plaintiff was informed that Wade H. Bolton made a will, but that it had never been probated in this state, or in accordance with the laws thereof, and was not in the possession or under the control of the plaintiff.

That E. M. Apperson, a citizen of Memphis, Tenn., had advertised the interests of Wade H. Bolton in said Desha lands to be publicly sold on the 14th of February, 1870, under some pretended authority derived from said will; and that if the sale took 'place, and Apperson got the proceeds, there would be nothing left in the hands of the plaintiff to pay the Arkansas creditors.

That Wade H. Bolton died seized of an undivided half interest in certain lands in Desha, which are described, and which are the Belcoe Lake lands, as described in the original bill for partition; that his interest in these lands was subject to the settlement of partnership matters between him and Isaac L. Bolton, to whom the lands jointly belonged, which was the subject of an undetermined suit in chancery, etc.

That Wade H. Bolton also claimed an undivided half interest in other Desha lands, which are described, and which Isaac L. Bolton had sold to James H. Branche, and which were also in litigation.

That these were the interests in lands which Apperson had advertised for sale, and that until the determination of said suits, the extent and value of Wade H. Bolton’s interests in the lands was uncertain, and would be sacrificed by a sale.

Prayer, that Apperson be enjoined from selling the lands. The bill was presented to the probate judge of Desha, before it was filed, and a temporary injunction granted by him, under the code.

Apperson answered, in substance, that the will of Wade H. Bolton was duly probated in Shelby county, Tennessee, in 1889, and he was executor, etc. That said will was also duly of record in the county of Desha, according to the laws of Arkansas. That his testator died seized of real estate in Desha county worth more than $25,000; and sets out the ■clause of the will empowering him to sell the real estate, and claims that by virtue of the will, and his letters testamentary, he w$s invested with full and exclusive authority to sell the Arkansas lands.

That Seth W. Bolton was aware of these facts when he obtained letters of administration from the probate court of Desha — that he was a party to the original suit for partition, where the will was made a matter of record; and that the will had been left for record with the clerk of the probate court of Desha county at the time he obtained his letters of administration. Admits that he had advertised the lands for sale, because in his best judgment, it was advisable, under all the circumstances, to sell them. That the lands were unprofitable, and the-taxes on them heavy, and there was about to be assessed upon them a very heavy levee tax, which he thought best to avoid the payment of by selling them — that a great portion of them were improved and fit for cultivation, and at the time they were advertised, lands of that description were selling at good prices, and that he expected to realize for them at the sale-their full value. Denies that his object in making the sale was to remove the proceeds to Tennessee, and hinder or delay the Arkansas creditors. Denies that his testator owed any debts to citizens of Arkansas, at the time of his death. Avers-that the partnership matters between his testator and Isaac L. Bolton had been settled, and that his testator had a clear right-to one-half of the Belcoe Lake plantation, which only awaited partition as prayed in the original bill pending for that purpose. Admits that the claim of his testator to the other lands-named in the bill was undetermined in a pending suit, but believed half of them would be decreed to him, and there was-no good reason why his interest should not be sold. Makes-his answer a cross-bill; alleges that the letters of administration of Seth W. Bolton were obtained by fraud, and that the debt of Parish was unjust and unfounded. That there were-no just claims against his estate in Arkansas, and that he had money in his hands to pay all just claims, etc. Prayed that the injunction obtained by Seth W. Bolton might be dissolved that he be enjoined from further meddling with the estate, and his letters revoked.

Seth W. Bolton answered this cross-bill, reaffirming the-allegations of his bill, and' denying all fraud, etc.

The court, upon these pleadings, refused to dissolve the injunction granted by the probate judge, and also refused the injunction prayed by Apperson, but made an order restraining either party from selling the lands until the pending litigation relating to them was determined. These pleadings, etc., were read on the hearing of the original cause for partition, etc.

After decreeing that the lands described in the original bill be partitioned equally between the representatives of Wade H. and Isaac L. Bolton, and awarding dower to Lavinia A. Bolton in the share of Wade H. Bolton, and appointing commissioners to divide the lands, etc.; the court further decreed that Seth W. Bolton, administrator of the estate of Wade H. Bolton, deceased, have the possession of the residue of the share of Wade H. Bolton, after the assignment of dower, to be by him administered according to law.

On the hearing, no evidence was introduced on this branch of the case, other than the exhibits accompanying the pleadings.

There were numerous other pleadings, and cross-pleadings, between the representatives of Isaac L. Bolton, which it is not necessary to notice, because they were withdrawn at the hearing.

Wade H. Bolton, by his will, appointed Apperson his executor, and empowered him to sell his real estate in Tennessee, or in other state. When the will was properly probated in Tennessee, and letters testamentary granted to him, the will was his authority to sell lands there, and not his letters. They were merely evidence of his authority to execute the power conferred upon him by the will. But he could not sell the Arkansas lands under the power conferred upon him by the will, until the will was properly admitted to probate in this state, under our laws. And when so admitted to probate and recorded, it was not necessary for him to take out letters here in order to sell the Arkansas land. Crusoe v. Butler and wife, 36 Miss., 171; Lewis and wife v. McFarland, 9 Cranch, 150; McCormick v. Sullivant, 10 Wheat., 202; Carmichal v. Elmendorf, 4 Bibb, 484; Mosby v. Mosby, 9 Gratt., 584.

In Crusoe v. Butler and wife, the testator was domiciled in Alabama, and the subject of the suit was real estate sold by his executor in Mississippi without taking out letters there.

The court said: “Another, and a very material question presented is, whether it was necessary that letters testamentary should be granted to the executor in this state, upon admitting the will to record here. It is insisted, in behalf of the defendants in error, that as no such letters were granted here, the executor was never invested with the authority to exercise the power to convey the lands conferred upon him by the will, and hence, that his deed is void. This question is intimately connected with the one last considered.

“ The grant of letters testamentary, as authority to the executor to act, has reference to the personalty and the ordinary office of administration. ' Generally, it has no reference to real estate, and can give no power over it to the executor. Eor aught that appears in this record, there was no personalty in this state to administer, and no necessity for a grant of letters here. The only necessity for taking any steps here, in relation to the will, appears to be to make it evidence in our courts. The will granted a power not appertaining to the subject-matter of administration under the authority of our probate courts — a trust committed by the testator to the persons who should become his executors. In such a case, the executor derives his authority from the will, and not from letters testamentary; and such letters could have conferred no power over the land, except what was given by the will. It is true, his character and capacity as an executor must be established by proof of the will. But when the will was admitted to probate here, and it was shown that he had taken upon himself the office of executor, the power to sell the land, which was independent of his appropriate functions as executor, became vested. Under the circumstances of the case, the only necessity for the grant of letters was to fix the person who was to execute the power granted by the will; and that having been done by 'the proper court of the testator’s domicile, it was unnecessary to obtain letters in this state, for they could have been useful only for the purpose of fixing the persons to execute the power.

“In principle, the case is not distinguishable from that of - a devise of a power to individuals, not executors, to sell lands lying in a different state from that of .the testator’s domicile, in which the will was admitted to probate; for, after the character of the executor has been once established, the person to whom the power is granted is fixed; and it is only necessary, in executing the power in another state, or in showing that the previous exercise of it is effectual there, to admit to probate, in the state, the will giving the power, and to show that the party exercising it is clothed with the character designated in it. The principles stated in the cases of Lewis and wife v. McFarland, McCormick v. Sullivant, and Carmichal v. Elmendorf, sustain this view.”

Whether the will' of Wade H. Bolton was proved in the Tennessee court, so as to be a valid will of lands in this state, under our statutes, as amended by the code, we do not find it material to decide in this case. See Gantt’s Dig., secs. 5800, 5801-2, from the revised statutes, and sec. 5784, taken from the code.

The allegations of the cross-bill of Apperson, that the administration of Seth W. Bolton on the estate of Wade H. Bolton, in Desha county, Arkansas, was fraudulent, and that the debt probated against the estate was simulated, etc., etc., were denied by the answer of Seth W. Bolton, and were not proven on the hearing.

The Arkansas lands were assets in the hands of the administrator, for the payment of any debts of our citizens properly probated against the estate (see Gantt’s Dig., secs. 68, 167), and the Tennessee executor could not deprive the administrator of possession of the lands for that purpose, by advertising and selling them under the power contained in the will, until the Arkansas debts, expenses of administration, etc., were paid. Clark as Adm'r v. Holt, 16 Ark., 265. It was also proper, perhaps, for the court below to enjoin the sale of the lands while they were in litigation.

The degree on this branch of the case must be affirmed, but this will not prevent Apperson from applying to the court below, at the proper lime, to remove the injunction against his selling the lands.

III. As to the dower of Lavinia A. Bolton. On the 31st of October, 1870, on motion of her solicitor, she was made a defendant to the original suit for partition, and leave granted her to file her answer and cross-bill within sixty days. Her answer, which was made a cross-bill, was filed on the 9th of December, 1870; in which she alleged that she was the widow of Wade H. Bolton, deceased. That he died seized of an undivided half of the lands described in the original bill, and without children, or other descendants in being capable of inheriting. That she, as his widow, was entitled to one-half of his personal and real estate, absolutely, and prayed that dower be assigned her accordingly. She makes no allusion to the will of her deceased husband. None of the parties seem to have answered her cross-bill. On the final hearing, she was decreed an absolute estate in one-half of the share of the lands partitioned to Wade H. Bolton; Her counsel here states that she was decreed an absolute, instead of a life estate, in the lands, under the published chapters of an incomplete digest, -(sec. 5, p. 79), which was then supposed to be law, but which this court has since decided not to have been in force.

And her counsel concedes that under the law then in force, (sec. 22, ch. 60, Gould’s Dig., p. 454), she was only entitled to a life estate; but insists that if this error can be corrected at all in this court, it should be done by a modification of the decree, and not by reversal. Brown v. Collins, Adm’r, 14 Ark., 421.

By his will, Wade H. Bolton gave to his “ beloved wife Eavinia Ann,” a life dower in three hundred acres of his household Hoboken plantation, in Shelby county, and a fee simple title (as he expresses it) in all his personal estate in Tennessee, except his gold watch, money, bonds, bank stock, and stock of every description. He also bequeathed to her ten thousand dollars in money, in fee simple title forever, in addition to his life policy of ten thousand dollars, insured in the Carolina Life Insurance Company at Memphis, for her use and benefit, provided that she did not dissent from his will, and involve his estate in unnecessary litigation.

Her counsel, in their brief, state that, “unlike Mrs. Sigler, •she did not wait until she had spent the provision so made for her in lieu of dower, or forfeited it by a subsequent marriage, but she promptly filed her renunciation, and took steps to recover her dower within one year from the death of her husband, as prescribed by our statute.”

This may be all true, but there is no evidence of it in the record before us. The date of Wade H. Bolton’s death does not appear, but it seems, as above shown, that his will was probated and recorded on the 9th of August, 1869, and the presumption is that he was then dead. Her cross-bill, in which she claimed dower, was filed on the 9th of December, 1870, more than a year after the probate of his will, and in it, as we have stated, no reference was made to his will, nor was the time of his death stated. Nor does it appear that she had, in any mode, renounced the provisions made for her in the will, before her cross-bill was filed.

The decree of the court below in herifavor must be reversed, but inasmuch as her cross-bill was filed under a misapprehension of the dower law, and was not answered, this branch of the case will be remanded, with directions to the court to permit her to amend her cross-bill, if she thinks proper to do so, with leave to other parties interested, in the estate of .Wade H. Bolton, to plead thereto, etc.


source: Caselaw Access Project

author: Walker, J.

license: Public Domain

text:
    Turner, use, etc., vs. Horner, Adm’r, etc.
    1. Vendor’s Lien: Not affectedly probate of the claim.

    The vendor’s equitable lien is not affected by the probate and allowance of the claim against the estate of the vendee.
    2. — Does not pass by the assignment of a judgment for the purchasemoney.

    A vendor of real estate recovered a judgment, in the 'probate court, against the estate of the vendee, for the purchase money, assigned the judgment, and afterwards filed a bill to enforce the vendor’s equitable lien, for the benefit of the assignees: Held, that the lien did not pass to the assignees of the judgment, and the bill could not be maintained.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.
    Adams, for appellant.

      Garland, contra.

   Walker, J.

In 1868, the complainant, William S. Turner, sold to James H. Keys a tract of land, for the price of $3,200-, of which $2,000 was paid, and a note executed to Turner, due one year after date, for $1,200, and in a further agreement in regard to the title of the land, Keys agreed to give the further sum of $320, which sum was added to the $1,200. The first note was given up, and a second note given for $1,520. A deed was executed to Keys for the land, which he held until 1865, at which time he died, and his estate was administered upon.

Turner, the vendor, who held the note, lost it, but made such proofs of its loss, and that it had not been paid, that it was probated, allowed, and classed as a claim or judgment, against Keys’ estate.

After this Turner, by a written instrument, for value received, sold and transferred this judgment to E. C. .Cage, who thereafter transferred the same to L. and J. W. Cage. The administrator of the estate of Keyes paid upon the claim, or judgment, $500.75, which, from the case presented, we may suppose was the distributive amount due out of the proceeds of the personal estate. The administrator of the estate of Keys filed his petition for the sale of the real estate of Keys, and such proceedings were had, that an order was made authorizing the administrator to sell the real estate of Keys, of which the tracts sold by Turner to' Keys was a part. Horner, the administrator, advertised the land for sale, and the complainant, Turner, for the use of L. and J. W. Cage, filed his bill to enjoin the sale of the land so conveyed by Turner to Keys, and to assert a vendor’s lien on the land, to satisfy the claim or judgment, which he had sold to E. C. Cage, who had assigned it to L. and J. W. Cage. The heirs and administrator of Keys were made parties to the bill. Answers were filed,, one of which questioned the equity of the bill by demurrer. The demurrer to the bill was sustained, and the bill dismissed, and plaintiff appealed to this court.

There is no question but that Turner, as vendor, had a lien upon the land sold by him to Keys, for the payment of the balance of the purchase money, and that the mere fact of his probating his claim, and having it classed and allowed in the probate court, did not affect the lien right to satisfaction; and, as this is a mere implied lien, not contracted for, under our administration laws, it is questionable whether he could assert his right to satisfaction out of the land, until the personal assets had been first exhausted. Gould’s Dig., ch. 97, p. 119. But the question is, whether by parting with his debt, he did not deprive the owners of the debt of the benefit of this lien. In Leading Oases in Equity, Hare and Wallace’s Notes, vol. 1, p. 866, it is said the lien exists only as between the vendor and vendee, and perhaps their privies in estate or law, and then only for the unpaid purchase money. It is merely a personal and equitable right, not passing with the assignment of the vendee’s obligation, but extinguished when an assignment takes place. Such is the decision of the courts of most of the states, and the repeated decisions of this court. Where the title to the estate is not parted with, or the debt is secured by an express lien by contract, the rule is different. > in this case,if Turner had parted with the debt by an assignment of the note for the purchase money, it is conceded that the lien would have been lost-; but his debt had been merged into a judgment, and was not assignable, but sold to Cage, by force of which, although the right to enforce satisfaction would have been different, still the debt, the right to the money, was absolute, as if passed by assignment of the note; and if, as has been conceded, the lien would not pass with the debt into the hands of the assignee of the note, we can see no good reason why it should pass to the purchaser of the debt. In either case, the vendor has parted with his debt, and has no right to satisfaction by force of the lien, because he has no debt to be satisfied.

The authorities cited by counsel do not, in our opinion, conflict with this view of the case. In the case of Crawley v. Riggs, 24 Ark., 566, the notes were assigned as collateral security, and when the court say, in the opinion delivered in that case, that Riggs could have paid off the notes and have enforced his lien, it is because then the debt and the lien, which had been separated by the assignment, were again united in the vendor, and fully accords with the decision made at the present term of this court, in the case of Bernard Bernays v. Field and Dolly et al., ante, p. 218. In that case, Douglass sold certain lots of land, and gave to the purchasers a bond for title, upon payment of the purchase money. This bond for title was by assignment several times transferred to other parties. Under this state of case, it was held that Douglass held the legal title to the lots with a specific lien upon them, for the payment of the purchase money, and that the effect of the subsequent sales and assignments of the bond created subsequent liens upon the lots, for the payment of the purchase money, to be satisfied in their order, in the nature of subsequent mortgages. 14 Ark., 626; 13 id., 534; 16 id., 145 ; 18 id., 553. Dolly and Field, to whom the bond for title had had been assigned, made an assignment of the bond to Rector, who executed his note to Field and Dolly for.the payment of the purchase money. They assigned the note to Benedict, Hall & Co. The note was protested for nonpayment, and paid and taken up by Field and Dolly, to whom Benedict, Hall & Co. reassigned the note, but without recourse upon them; that Benedict, Hall & Co., as assignees, held a lien upon the lots for the payment of the notes given for the purchase money; and that under ordinary circumstances, when an assignment is made without recourse, as held in Williams v. Christian, 23 Ark., 255, the vendor’s lien would not pass, but as the assignment was made to Field and Dolly, who held the vendor’s lien, the effect of which was to reunite in the vendors the debt and the right to enforce satisfaction under the lien, for which they had contracted, they had a right to enforce the vendor’s lien upon the lots so conveyed. See Kelly v. Payne, 18 Ala., 371.

The lien right to satisfaction in this case was upheld upon the express ground that the debt and the lien right had by the reassignment been united in the vendor.

But in the case under consideration, Turner, the vendor, has not regained his title to the debt. He sues as a mere nominal party, for the use of L. and J. W. Cage, to whom the judgment was sold, and insists that he had a right to do this because, should the estate of Keys prove to be insufficient to pay the debt, that Cage will have his recourse against him for any balance due Cage upon his purchase. In this, no greater liability to pay rests upon him than if he had assigned the note. The liability to pay is a mere contingency, which from the state of case presented may never arise.

Under this view of the case,.we think that the demurrer was properly sustained to Lhe bill.

Let the decree of the court below be affirmed.


author: Harrison, J.

text:
    Buckner & Co. vs. Davis and wife.
    1. Married Women: Separate estate of, how created, etc.

    A married woman could, in ■ equity, take real and personal property to her separate and exclusive use; but in order to exclude tbe marital rights of tbe husband, the intention to settle it to her. sole use must have been clearly expressed by apt words to that effect.
    2. — Bight to cho/rge her separate estate.

    The right of a married woman to charge her separate estate with the payment of her debts, especially those created for her own benefit, or in respect to the estate, is well settled.
    3. Exhibits : JEffect of, on demwrrer.

      Held, on demurrer, that a deed made on exhibit and referred to in tbe complaint, and thereby made a part of the record, would control the averments of the complaint.

      APPEAL from Drew Circuit Court.
    Hon. John A. Williams, Special Judge.
    Garland, for appellant.

      W. F. iSeemmons, contra.

   Harrison, J.

Eliza J. Davis, the wife of J. Jones Davis» at the time, a retail dealer in millinery goods and notions in her own name and on her own account, at Monticello, in this state, on the 18th day of September, 1870, bought of H. J. Buckner & Co., wholesale merchants in Louisville, Kentucky, a bill of goods amounting to $665.65, for which they drew on her and she accepted a bill of exchange, payable to their own order, at the Citizens Bank of that city, four months after date.

Several years previous to the purchase of the goods, that is to say, on the 23d day of October, 1867, being at that time the wife of said Davis, she purchased a lot of ground in Monticello, the deed of which she took in her own name.

On the 14th day of August, 1871, she conveyed the lot, her husband joining with her in the deed, to her daughter and only child, Prances E. Owens, wife of William N. Owens.

H. J. Buckner & Co., on the - 28th day of February, 1873, brought this suit in the Drew circuit court, against Mrs. Davis and her husband, and Owens and wife, to set aside the conveyance to Mrs. Owens, and subject the lot to the payment of their debt. They alleged in their complaint, in addition to the foregoing facts, that Mrs. Davis intended, when she contracted the debt, to charge her separate estate with its payment, and did so charge it, and that the same was a charge upon the lot.

That when she conveyed the lot to Mrs. Owens, she had failed in business, was greatly in debt, and hopelessly involved, and the conveyance was without any valuable consideration, and for the purpose of defrauding her creditors. That Owens and wife were in possession of the lot, and Mrs. Davis was without other separate property to which they might resort for the satisfaction of their debt.

Copies of the deeds referred to were filed with the complaint "as exhibit.

Mrs. Davis and Owens and wife filed answers, but the case being decided without a hearing upon them, it is unnecessary to state their nature or purport.

Reserved in the answer of Owens and wife was a demurrer to the complaint, on the ground that it did not contain sufficient facts to constitute a cause of action, which being taken up and considered by the court, it was adjudged well taken, and the court thereupon rendered a decree dismissing the complaint. Erom which decree the plaintiffs appealed.

The controversy in this case arose and the suit was brought before the act of April 28,1873, declaring all property of married women to be their separate estate, was passed.

By the common law, according to which the case before us must be decided, after marriage, the personal property of the wife belongs absolutely to the husband, and he also becomes entitled to the rents and profits of her real estate. 2 Kent’s Com., 130,143; Shouler’s Dow. Rel., Ill, 142.

But in equity she may take both real and personal estate to her own separate and exclusive use, and as to which she is regarded as a feme sole; but it must be settled upon her as such, and to exclude the marital right of the husband and establish a separate use to her, the intention must be clearly manifested by such words as “ to her sole and separate use,” “toher own use independent of any husband,” “for her livelihood,” etc., or by such circumstances as fairly and justly imply it. 2 Story Eq. Jur., 1377, 1381, 1382 ; Shouler’s Dow.' Rel., 189.

Her right to charge such separate estate with the payment of her debts, especially those created for her own benefit, or in respect to it, is well settled. 2 Kent’s Com., 164; 2 Story Eq. Jur., 1397-1401; Shouler’s Dow. Rel., 220 ; Dobbin and wife v. Hubbard, 17 Ark., 189; Stillwell and wife v. Woodruff, ante, p. 346 ; Jaques v. The Methodist Episcopal Church, 17 John., 548 ; Phillips v. Graves and wife, 20 Ohio St., 371.

There is no direct and explicit averment in the complaint, that the lot was the separate property of Mrs. Davis; the nearest approach to it is the allegation, that it was her intention, when she contracted the debt, to charge her separate estate with its payment, and she did so charge, and the same was a charge upon the lot; and the further one, that she had no other separate property to which they might resort for its satisfaction.

No reference is made to intention, expressed or indicated in the deed to her, to exclude the marital rights of her husband, and create a separate use to her; and when we look to the deed, which is referred to in the complaint, and so made a part of the record, we find that it was not conveyed to her as her separate property ; the deed containing no indication, by the use of apt words, such as we have mentioned, or more general expressions, of an intention to create such separate estate or use.

Then, if the averments of the complaint in that regard, were sufficiently certain and explicit, the deed would disprove and control them. Newman’s Plead. and Prac., 252 ; Bush v. Madeira's Heirs, 14 B. Mon., 212.

It is, therefore, apparent, that Mrs. Davis never had any separate estate in the lot, which she might subject to the payment of her debts, and the plaintiffs have no lien or charge upon it; and the court below did not err in sustaining the .demurrer and dismissing the complaint.

Decree affirmed.


author: Williams, Sp. J.

text:
    Walker vs. Fuller.
    1. Practice at Law : Bill of particulars.

    Unless the complaint is sufficiently explicit to notify him, the defendant is entitled, under the code of practice, to such a bill of particulars as will inform him what he has to answer, and afford him record protection against subsequent litigation in regard to the same subject matter; but the plaintiff in an action of trespass is not required to file an invoice of a stock of goods upon which the trespass was committed.
    2. Damages : Punitive, when not warranted.

    Where a trespass is committed through a mutual mistake of the rights , of the parties, it will not warrant punitive damages.
    3. Remittitur: Of excessive damages, how entered.

    The proper practice, where the verdict is excessive, is to enter a remittitur on the verdict, and take judgment for the balance.
    4 Trespass: Return of the goods taken, effect of.

    The mere return of goods by a trespasser, and acceptance by the plaintiff, will not bar an action of trespass for the taking, but will go in mitigation of damages.

      5. —JEffect of subsequent agreement upon the right of action.

    The fact, that one whose goods were illegally seized, subsequently entered into an agreement, under which they were disposed of, will not affect the right of action for the illegal seizure.
    6. Evidence : Admissibility of.

    A witness should not be permitted to testify, that in consequence of the alleged trespasses he lost credit and had to close business; that was a conclusion to be deduced by the jury from the facts proved.
    7. Damages : Measure of, in trespass.

    When one, against whom an execution is illegally issued, voluntarily disposes of his property at a reduced price, in order to apply the proceeds to the execution, the price received for the property is the measure of damages, and not the actual value, or speculative prices that he might otherwise have received.
    3. Former Recovery : When a proceeding for contempt may be pleaded as.
    When a proceeding by attachment for contempt is instituted as a means of private redress, and results in satisfaction, it may be pleaded in bar of a subsequent action of trespass between the same parties, and l founded on the same subject matter.

      APPEAL from Orawford Circuit Court.
    Hon. Volney Moore, Special Judge.

      Wm. Walker, for appellant.

      DuYall and Bose, contra.

   Williams, Sp. J.

The appellee brought suit in the Crawford circuit court against appellant, and Archibald P. Scarlett and William L. Taylor, on 81st day of August, 1871, for unlawfully taking from the possession of appellee and carrying away a large quantity of goods, wares and merchandise, etc. The second paragraph of the complaint sets up, specially, the fact that plaintiff below was a merchant at Port Smith, and had a general assortment of goods, worth “ eight thousand dollars,” with which he was carrying on his business. That on the 26th day of March, 1870, defendants, Scarlett, Taylor and Walker, caused to be placed in the hands of the sheriff of Sebastian county, a writ of execution, which was wrongfully and unlawfully issued by Taylor, as clerk of Crawford county, upon a judgment rendered in favor of Scarlett, as administrator of Anderson Caldwell, for $4,200 and interest and costs; which judgment had been before that time superseded by the “ order ” and “ mandate of the district court of the United States for the western district of Arkansas, which order of supersedeas was then and still is in force. All of which defendants below had notice. That Walker and Scarlett directed the sheriff to make levy of said execution upon all the goods, etc., aforesaid, belonging to the plaintiff, and make sale thereof; and, in obedience to such instructions, the sheriff did seize and take into possession all .the goods, wares and merchandise belonging to plaintiff, and did make sale of a large quantity of the same, amounting in value to four thousand “fifty-six” hundred dollars, which sale was made ac a great sacrifice, and after the sale Walker received the proceeds or a portion thereof to his own use and benefit. The defendants below, Walker and Taylor, who were served with process, filed their answer on the 11th day of December, 1870. This answer contains three paragraphs. In the first they set up: That on the 18th day of May, 1870, plaintiff below filed his petition in the district court-of the United States for the western district of Arkansas, before the judge thereof, then in open court judicially sitting and presiding, stating and alleging in his said petition, the same acts, trespasses and grievances in the second paragraph of his said complaint, stated- and pleaded, and praying for an attachment against the said defendants for their contempt of that court in suing out the same execution in said complaint mentioned, to which said petition said defendant, William Walker, voluntarily entered his appearance, and afterwards, to wit, on the 19th day of the month and year last aforesaid, filed his response thereto; and such proceedings were thereupon had, that afterwards, to wit, on the 5th day of June, 1871, and during the May term of that year of said United States district court, an order was made by said court against said William Walker and entered of record, whereby after reciting, among other matters and things, the suing out of the same execution in the second paragraph of said plaintiff’s said complaint mentioned and complained of, and the proceedings thereunder substantially as set forth in said complaint; it, was among other things'ordered by the United States district court, that the said William Walker pay to the clerk of that court, on or before the 1st day of July, 1871, the said sum of nine hundred and seventy-six dollars, to be held subject to the further order of that court; and that since the making of said order the said William Walker has paid the said sum of nine hundred and seventy-six dollars to the clerk of said court, and the same has since been paid to said plaintiff. And the said defendants, Taylor and Walker, further say that the cause of action in the first and second paragraphs of said plaintiff’s complaint, set forth and pleaded, are one and the same, and not separate causes of action, and so the defendants, Taylor and Walker, do say that the said summary proceedings by attachment for contempt, so instituted and prosecuted by the said plaintiff against them in the said district court of the United States, were and are for the redress of the same supposed wrongs, trespasses, injuries and grievances in said plaintiff's complaint complained of, and none other, etc.

The second paragraph of the answer was a general denial, not guilty.

The third paragraph of the answer avers that the sale of the goods of which plaintiff below complained, was done by the sheriff under the express license and permission of plaintiff below.

Taylor also filed a separate answer, but as he was ultimately discharged by a verdict in his favor, we need not refer to it. Scarlett was not served with process and seems to have been dropped from the case, sub silenlio.

Appellee demurred generally to the first and third paragraphs of the joint answer.

The court below sustained the demurrer as to the first paragraph of joint answer, and overruled it as to the third paragraph.

Walker excepted to this ruling of the court in sustaining the demurrer, and assigns it here as one of the errors committed by the court below. Plaintiff below amended his complaint, by striking out four thousand and inserting fifty-six hundred, which amendment must have been made by interlineation, without erasure, for in copying the complaint the clerk has given us in the complaint both sums as above copied.

On motion of defendants below, plaintiffs below elected to rely on his second paragraph, and the first was stricken out by the court.

The defendants below moved the court to require the plaintiff below to make his complaint more definite; which motion the court overruled and Walker excepted. We shall not further notice this point than to say, that a defendant is entitled, under the general and indefinite system of pleading allowed by our code, to a bill of particulars, which will fully inform him what he has to answer, and such as will give him record protection from future harassment for the same subject matter, if the complaint is not sufficiently explicit otherwise. In this case we see nothing in the exception. The plaintiff below could not have been properly required to file an invoice of his entire stock upon which the trespass was committed.

The issues thus formed upon the 2d paragraph of the complaint, and the 2d and 3d paragraphs of the joint answer, and upon Taylor.’s separate answer; the case was tried by a jury, which rendered a verdict against appellant, Walker by name, for six thousand four hundred and ninety-six dollars. The verdict further found, “ as to defendant, we do find him not guilty;” referring of course to Taylor, as Scarlett seems to have been dropped from the case.

The jury also found specially as follows: “ Whether or not the sale of the goods, wares, and merchandise in plaintiff’s complaint alleged, and the receipt of the proceeds thereof by defendant Walker, was by the leave of the plaintiff, answer no.” Taking this entire proposition with its two distinct propositions, 1st, the sale of the goods, and 2d, the payment to Walker, and we could not, in view of the testimony, comprehend how the jury were able to return a general negative, if we shut our eyes to the fact that they were misled by the court, which, through the entire case, seems to have misapprehended the law governing it. This is manifest in the admission of illegal testimony; in the language of appellee’s instructions, which were given and more strikingly manifest, in some of the instructions asked by appellant, and refused. The consent of Euller was certainly given verbally and in writing, to the sale of his own goods in the ordinary way, which he himself superintended.

The ?d, 3d and 4th special findings of the jury had reference to Taylor.

5th. Whether or not plaintiff received back the amount of the proceeds of the goods, wares and merchandise, alleged to have been received by said Walker, or any part thereof, and if any, how much.

The plaintiff did receive back one thousand two hundred and nine dollars of the proceeds of said sale of the goods, wares and merchandise, alleged to have been received by said Walker. Judgment was rendered against Walker for the full amount of the verdict. After judgment, plaintiff below filed a paper, which is called a remittitur in the record, which remits the sumyjf twenty-one hundred and thirty-three dollars of the judgment. After plaintiff below, by instruction of the court, given at his instance and refused to defendant, and by illegal evidence, had caused the jury to be misled as to the measure of damages, and the rule by which they were to be assessed, claiming the full value of the goods, with loss on sales of same, and loss on plaintiff’s credit, and similar standards of measurement, it was a late attempt at reparation, to enter a remittiturafter judgment. He would have done well to have also remitted the speculative value of the goods. Then we would not have presented to us the singular spectacle of a judgment for six thousand four hundred and ninety-six dollars, for taking and holding possession of a stock of goods worth eight thousand dollars, as claimed in the complaint, a part of which was sold off by appellee and the sheriff, bringing him four. thousand dollars, every dollar of which, except one thousand two hundred and nine dollars, paid Walker, he got; and of the one thousand two hundred and nine dollars paid Walker, he returned two hundred and thirty-three dollars, voluntarily, and the balance, nine hundred and seventy-six dollars, was paid by coercion, under the order of the United States court. All the unsold goods were returned, which taking the above valuation and Fuller’s statement, that he sold fifty-six hundred dollars worth of goods to get the four thousand dollars, would be two thousand four hundred dollars. We thus-find, with the verdict added, the account stands thus :

To value of stock of goods as stated iu the complaint, $8,000 00
To remittitur, ...... 2,133 00
$10,133 00
Contra.
By cash, ...... $4,000 00
“ verdict, ...... 6,496 00
“ value of goods returned, - - - 2,400 00
$12,896 00

We thus have two thousand seven hundred and sixty-three dollars, excess of actual damages.

Taking appellee’s complaint as the standard of the value, and seven hundred and sixty-three dollars above the highest estimate he makes in his testimony, to say nothing of the one thousand six hundred dollars difference between the estimated value at retail, and the actual price received for the goods sold, for which loss Walker was not responsible, if appellee had remitted all the money he received back and this excess in the measure of damages, we would have our field of inquiry narrowed, and appellant would have had less cause to complain of excessive damage. Both parties acted under a mis take, and there is nothing in this case which warrants severe punitive damages.

The proper practice would have been to have entered a remittitur upon the record for so much of the amount found by the verdict, and let judgment be rendered for the balance.

Walker moved the court to enter judgment in his favor upon the special finding of the jury. The court overruled this motion correctly. The mere return of goods by a trespasser and the acceptance of them by the.injured party will not of itself bar an action for the taking.

Walker moved for a new trial and set out as grounds for the motion:

1st. Because the damages assessed are excessive.

2d. Because there was error in the assessment of the amount of recovery.

3d. The verdict and special findings are not sustained by sufficient evidence and are contrary to law.

4th. The court erred in giving instructions of plaintiff below.

5th. The court erred in refusing to give defendant’s instructions.

6th. The court erred in permitting illegal evidence to go to the jury.

7th. The court erred in excluding evidence offered by deiendant.

The court below overruled this motion, and appellant excepted, and prepared his bill of exceptions, in which are set out all the testimony given or offered by either party, the instruc tions of the court, etc.

By the bill of exceptions, the facts of the case, which are undisputed, are about as follows:

That Scarlett had recovered a judgment against Fuller in the circuit court of Crawford county. That after judgment, the district court of the United States for the Western district of Arkansas had taken jurisdiction of the cause, and as the complaint states, by its mandate and order, the case had been transferred there, where it had been disposed of favorably to-Fuller, leaving nothing apparent upon the records of Crawford county, to show this action. That Scarlett had taken the case to the supreme court of the United States. Walker, who had been Scarlett’s attorney, and was cognizant of the whole matter, saw in a newspaper a report of the proceedings of the supreme court of the United States, in which the case was then pending, to the effect, that that court had decided that the district court had no jurisdiction or authority to remove a cause after judgment.

That Walker, supposing this to be conclusive of the case in the Federal courts, which was the only obstacle to the execution of the judgment in favor of Scarlett, in the Crawford circuit court, proceeded to order from the office of said clerk a writ of execution, and placed it in the hands of the sheriff of Sebastian county, where Fuller lived. That Baer, the deputy sheriff, came to Fuller’s store with this execution, about the 28th day of March, 1870, and presented it.

Fuller went for his attorney; while he was gone for his attorney, who lived in the same town, Baer levied on his stock and closed the store. Fuller states that the stock was worth between eight and ten thousand dollars.

The store was kept closed one or two days; within that time an arrangement had been made with Walker, by Fuller and his attorney, to the effect that Fuller was to go on with his business, and pay over the proceeds of the sale to Baer, who was to remain in the store and assist in selling the goods at Fuller’s expense, and with that understanding, which was reduced to writing, Fuller and Baer opened the store and proceeded to sell the goods, at and below prime cost, which reduetion was made by Fuller voluntarily and without coercion, or duress, other than his anxiety to get rid of the execution, which both he and his attorney, as well as Walker, thought to be valid and legal. The money received for the sale was deposited in the First National Bank, at Fort Smith, every evening, to the credit of Walker. Fuller testifies, that when said Walker came to Fuller’s store, to prepare the agreement, he asked him how he ascertained that the judgment mentioned in the complaint had been reversed, and that Walker replied, that he had seen a telegraphic dispatch to that effect, that the act of congress of 1868, providing for the removal of causes from the state to the Federal courts after judgment, was unconstitutional and void. That Fuller then asked him, if that was all the information he had in reference to the case; and he replied, no, that he had received a telegram from Garland, the attorney who represented him, Walker, in the supreme court, to the effect, that said judgment had been reversed. This latter statement Walker denies. He states that he saw a newspaper report of the decision of the question, which he still contends was true. But by some means afterwards, in the particular case, the supreme court dismissed Scarlett’s appeal. Fuller states that all the way through, he relied on Walker’s statements, and believed them, an$ the evidence shows pretty plainly that Walked believed his own statements, and so did Fishback, Fuller’s attorney. But if false, there was no relation of confidence between Fuller and Walker ; no such knowledge on the one hand, and ignorance on the other, as to make out a case of fraud, or duress, so as to aggravate what was at best a trespass, for the direct and immediate consequence of which Walker was unquestionably liable. The proof further shows, that at the end of two or three weeks, during which Fuller and Baer had been engaged in selling the goods, when Fuller learned that Walker was mistaken, and Baer then went to Scott county, where Walker was attending court, to see him, and on his return, the store was relieved from the execution, and the goods remaining unsold were restored to Puller. That during the time intervening between the seizure and release, Fuller states that about four thousand dollars of the goods were sold at prime cost and below; of which, about two thousand and seventy-nine dollars had been paid over to Baer, to be deposited in bank; that when Baer released the store and goods, he returned all the funds in his hands, and all that had been collected, or taken from him, except one thousand two hundred and nine dollars, which the proof shows Walker had received. That Walker returned two hundred and thirty-three dollars of this sum, and was compelled by order of the United States court to pay over the balance of nine hundred and seventy-six dollars, which Fuller states he received from the clerk of the United States court. That he had paid Baer for his services while assisting him in selling the goods. Thus, all the actual damages which defendant sustained, which were the natural and legitimate fruits of the trespass, except Baer’s wages, were returned, or coerced from Walker by process. Fuller stated, further, against the objection of Walker, that he was doing a profitable business, and was in good credit at the time of the levy, and that in consequence of said levy, he was forced to close his store and retire from business, and that he lost his credit. This loose, general and indefinite statement, the court permitted to go to the jury, against the objection of Walker, to which ruling he excepted, and we think the exception well taken.

For, even conceding, which we by no means do, that loss of credit and being forced to close business were the natural and immediate consequences of Walker’s trespass, and not too remote and dependent upon other causes, in whole or in part, the witness should not have been allowed to usurp the province of the jury, and broadly assert conclusions instead of facts.

That he did close business was a fact, that he lost credit may or may not have been a fact; it needed specifications as to persons, time, and place. That he was doing business before the levy was a fact, etc. But to allow the witness to say that in consequence of any one fact or a combination of them, certain results transpired, is to allow him to usurp the province of the jury — in this instance, a vital and damaging point, to defendant Walker. Juries at best are too apt to accept ready-made conclusions, rather than take the pains to criticise facts and draw their own. Fuller further testified, against Walker’s objection, that the goods sold under the agreement to satisfy the execution were worth $5,600, that he could have realized that amount out of them, if he had not been interrupted in his business. The objection to this testimony was well taken; the true test of value in this case was, what plaintiff below voluntarily sold his goods for, for Walker was not responsible for what he chose to do. The consequence is too remote. There' is no evidence of duress or fraud; the price at which the goods were sold was set by Fuller, and, except that Baer assisted him in selling at his expense and under his direction, there is nothing in the case to connect Walker with this loss, much less make him responsible for it. But the court should have excluded it as evidence, not on that ground alone, but on the ground that plaintiff had no rights, under the law, to estimate vague, uncertain and speculative prices, and take this as a standard of the measure of damage, which, from their verdict the jury evidently did. Sedg. on Meas. of Dam., 82, 83, 84. Anthony v. Slaid, 11 Met. (Mass.), 290; Eames v. New England Worsted Co., id., 570; Donnell v. Jones, 13 Ala., 490. The last case is in point with this. Burrows v. Wright, 1 East, 298.

The evidence tends to prove that Fuller and Walker both acted in the matter under the impression that Fuller had the judgment to pay because the case had been decided against the latter in the supreme court of the United States.

There was also testimony tending to prove that Fuller was in failing circumstances, at the time the levy was made.

Appellee asked seven instructions. The court gave all but the seventh, which was refused. The instructions of appellee, which were given against the objections of appellant, are as follows.

1. The plaintiff moves the court to instruct the jury, that if they believe from all the testimony in this case that the defen dent, Walker, caused the execution in the complaint mentioned to be issued and levied upon the goods, wares, and merchandise of the plaintiff, thereby causing his house of business to be closed illegally, then they will find for plaintiff.

2. That it is admitted by the answer of the defendant that the judgment of this court in the case of Scarlett, Adm'r of Caldwell, v. Fuller, had been superseded and removed from this court, to the district court of the United States, for the western district of Arkansas, and that a judgment of nonsuit against said Scarlett had been therein rendered, from which an appeal had been taken to the supreme court of the United States, the case was pending and undetermined on the 28th of March 1870, that no execution upon the judgment in this court could -lawfully be issued before the judgment of the district court of the United States for the western district of Arkansas, had been reversed by the supreme court, and its mandate returned and filed in the office of the clerk of said district court.

3. If the jury believe from the evidence that the execution was unlawfully issued by the defendants, or either of them, and the property of the plaintiff was, by virtue thereof, seized, and sold, they should find for the plaintiff, and assess his damages to the actual value of the goods at the time they were seized and sold, and with interest thereon, at the rate of six per cent, per annum, from date of said seizure until the present time.

4. If the jury believe from the evidence that the agreement executed by plaintiff, Fuller, Jacob Baer, and the defendant, Walker, was executed after the goods of the plaintiff had been seized and taken into possession by the Sheriff of Sebastian county, by virtue of an illegal execution, and that said agreement was executed under the belief induced by the misrepresentation of Walker, that said execution was legal and valid, then said instrument would not amount to a defense to the plaintiff’s complaint, and they should find for the plaintiff on that issue.

While it is true that this agreement was not a defense to the action, yet the instruction was misleading, and bore its natural fruit in the special finding, above commented on.

It took as a fact, that Walker misrepresented, and implied that he was directly responsible to Fuller for the misrepresentation. The proof shows no fact in Walker’s knowledge, that was not equally accessible to Fuller; nothing that justifies him in yielding his will captive to Walker’s story. Besides misrepresentation, if of importance, here was a conclusion to be drawn from facts, and was for the jury. In the form in which it was given, it tended to mislead the jury to infer that they could not regard the agreement as valid for any purpose, and that Walker .was responsible for the sacrifice Fuller made of his goods, because he had agreed to sell for Walker’s benefit under misrepresentation. If Walker or Baer had sold the goods under the execution or otherwise, this would have been true. But the price at which Fuller sold them was no part of the agreement. This paper did mitigate the damages by showing that Walker and Bear really made no sale or sacrifice of the goods at all, but that the sale and .the price was Fuller’s voluntary act; it is misleading in not taking the damages for speculative losses out of the estimate; and the 4th instruction should have been so qualified, although as applied to that part of defendant’s answer, which set up plaintiff’s license, the court below decided correctly, that this agreement was not a defense to the action; the language used was not sufficiently guarded, however, and was misleading. This agreement, whether induced by misrepresentation or not, was no defense for an illegal seizure of goods, if executed through mistake even of both parties, as to rights and liabilities. It would no more protect Walker, if he had said nothing, than it would with what it is proved he did say.

But in instructing the jury as to this issue, the court misled them as to another matter. The 3d instruction is misleading in the last clause, in which the court directs the jury to find the actual value of the goods, at the time of seizure.

This is good abstract law, but the jury should have been directed to credit the amount returned, and in view of the error of the court, in allowing Puller to state speculative value, and that the goods were sold at a sacrifice by him, this instruction was calculated to lead the jury to believe, and did so lead them, as we may infer from the exorbitant verdict, to allow plaintiff below his speculative losses by selling at cost. These damages were not the natural and proximate consequences as of Walker’s trespass, but required the contributing concurrence of Fuller’s will, and while we could not regard the written agreement made under mistake, on the one hand, to excuse Walker’s trespass, we cannot, on the other, let Fuller so far escape the consequences of his mistake as to aggravate his damage by the result of his own act; even though that act might have been superinduced by Walker’s misrepresentation, unless the loss was the direct consequence of it. Speculative future events are not admissible, as a rule, for measuring damagesj nor are remote, or indirect consequences, if not proximately caused by the- wrongful act. Sedg. on Meas. of Dam., 82, 83, 84. Anthony v. Slaid, 11 Met. (Mass.), 290. Eames v. New England Worsted Co., id., 570; Donnell v. Jones, 13 Ala., 490. The last cited case was much like this; it was an action for malicious prosecution, whereby plaintiff was compelled to make an assignment, in which plaintiff claimed damages for loss sustained in selling goods on the assignment. It was held to be too remote. So here— in consequence of Walker’s illegal act, plaintiff concluded to sell at a sacrifice to raise the money quickly which he thought due. It was not the natural and proximate result of Walker’s act, although induced by it. The loss, if any, must be Euller’s, not Walker’s. Therefore, in the form in which it was given, this instruction aggravated the error of admitting this illegal testimony, and we cannot be much surprised that in a case which does not seem to call for vindictive damages, after the plaintiff below had received back his goods, which remained unsold, and the proceeds of all that were sold, this jury render a verdict for six thousand four hundred and ninety six dollars, on a stock which plaintiff claimed in his complaint to be worth but eight thousand dollars, an exeessiveness which at once shocks our sense of justice, and one which the remittitur does not wholly remedy.

The defen dent below, Walker, asked several instructions which were refused.

. 1. That if they believe from the evidence that the instrument of writing, bearing date 2d of April 1870, purporting to-have been executed by plaintiff, defendant William Walker, and Baer, deputy sheriff, produced and read in evidence by defendants, relates to the subject matter of the complaint, they'should find for defendants. This instruction was correctly refused.

3. That if they find from the evidence that plaintiff received directly or indirectly, all the money in his complaint alleged to have been received by defendant Walker, he is not entitled to again recover the same.

This ought to have been given, for while the receipt back of the goods alone would not bar plaintiff’s action, he was not entitled to recover their value after receiving them. The fact should have gone in mitigation of damages, and the jury-should have been so instructed.

• For the same reason, the 4th instruction asked by defendant should have been given. It is as follows: That if the jury should find for plaintiff, they should not take into account the proceeds of the goods alleged in the complaint to have been received by defendant, Walker, if they find that plaintiff ■received the same back before the commencement of this suit. The defendant’s 2nd and 5th instructions were given, and as to them no question is made. The court, below erred in admitting testimony on the part of plaintiff against appellant’s exception.

It erred in giving and refusing instructions, as above indicated, and the damages are excessive.

And for these reasons, which are duly set forth in the motion for new trial, the same should have been granted.

We might content ourselves to rest the case here. But there is one question more, which we think should be settled now : that is, whether the first paragraph of the answer is, on its face, a sufficient defense. The legal proposition presented- is old and familiar; but the practical application of it to the facts set up in the answer, and to be determined whether indeed these facts present a case of former recovery, have been matters of no small difficulty. The novelty of the form ■ of presentation, andjthe dearth of authority directly upon the question, have®caused us to deliberate with caution,- and we announce our conclusions now, with some hesitancy, notwithstanding we feel confident of their correctness. Says Bacon, u The law abhors multiplicity of actions; and therefore, whenever it appears on record that plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum." Bac. Abr., tit. Abatement, letter 112, vol. I., p. 28. And further on, he says: The law is so watchful against all vexatious suits, that it will neither suffer two actions of the same nature for the same demand, nor even two actions of a different nature.” See same title and letter, vol. I., p. 29.

Where the cause of action is the same, a former suit, though on an inadequate one, is a bar to a second recovery. Pinny v. Barnes, 17 Cow., 420. An action of replevin, in which the value of property was recovered and paid, is a bar to an action for the taking. 21 Barb. S. C., 541. A statute of Alabama provided for a summary remedy against a sheriff to be made on the first day of the term, at which an execution was returnable, upon his failure to make the money which, by due diligence, might have been made. Held, that a judgment for the sheriff, in such proceedings, was a good defense to a suit on the sheriff’s bond, charging him with a breach of duty in the same case; that he had omitted to levy upon goods of defendant in the execution, and with neglecting to sell them after a levy. Chapman v. Smith, 16 How. (U. S.), 114.

As to conclusiveness where less has been recovered in the former proceedings than the plaintiff could recover in the subsequent suit. See Tams v. Richards, 26 Penn. St., (2 Casey), 97. Judgment in a trial of the rights of property will bar an action for damages for the taking. Roberts v. Heim, 27 Ala., 678. So of judgments in trespass, and assumpsit, where a party has his election, a recovery in the first brought will bar the second. Rice v. King, 7 Johns., 20. So of case and trespass. Johnson v. Smith, 8 Johns., 383. So of trover and assumpsit. Kitchen v. Campbell, 3 Wils., 304. See also Smith v. Whiting 11 Mass., 445. White v. Philbrick, 5 Greenl., 147. Mash v. Pain, 4 Rowl., 273. Robertson v. Smith, 18 Johns., 459. Elliot v. Porter, 5 Dana, 299. Hyde v. Noble, 13 N. H., 494. Whitney v. Clarendon 18 Vt. (3 Washb.), 252.

In the case of Kendall v. Stokes and others, 3 How. (U. S.), 87, Stokes and others sued Kendall for damage in withholding as. postmaster-general, moneys due plaintiffs as mail contractors, in which plaintiffs claimed that in consequence of this, they had been compelled to pay large sums in discount and interest in order to carry on their business. The proof showed that by act of congress, plaintiffs’ claim had been referred to the solicitor of the treasury, who awarded the plaintiff a given sum, which Kendall was required to pay by mandamus.

The supreme court of the United States, in that case, decided that, after the award by the solicitor, to whose jurisdiction Stokes had submitted, and the receipt of the money, ah action for the original cause could not be maintained, upon the ground that the claimant did not claim, or prove before the referee all the damages he had sustained, and that after having-applied for a mandamus, and got relief by that proceeding, he could not maintain a suit in case for damages. Judge Taney, in delivering the opinion of the court, says: “ The action of mandamus was brought to recover it (i. e., the money due for services as contractors), and the plaintiffs show by their evidence that they did recover it in the suit. The gist of the action in that case was the breach of duty in not entering the credit, and it was assigned by the plaintiffs as their cause of action. The cause of action in the present case is the same and the breach here assigned as well as in the former case, is the refusal of the defendants to enter this credit; ” and after proceeding to show the identity of the cause in both cases, he says: “ That where a party has a choice of remedies for a wrong done to him, and he elects one and proceeds to judgment, and obtains the fruit of this judgment, can he in any case afterwards proceed in another suit for the same cause of action ?

“ It is true that in the suit by mandamus, the plaintiffs could recover nothing beyond the amount awarded. But they knew that, when they elected the remedy. If the goods of a party are forcibly taken away under circumstances of violence, he may bring trespass, and in that form of action recover not only the value of the property, but also what are called vindictive damages, that is, such damages as the jury think proper to give, to punish the wrongdoer. But if instead of an action of trespass, he elects to bring trover, where he can recover only the value of the property, it never has been supposed that, after having prosecuted the suit to judgment, and received the damages awarded him, he can then bring trespass upon the ground that he could not, in the action of trover, give evidence of the circumstances of aggravation, which entitle him to demand vindictive damages. The same principle is involved here.

“ The plaintiffs show that they have sued for and recovered in the mandamus suit the full amount of the award, and having recovered the debt, they now bring another suit upon the same cause of action, because, in the former one, they could not recover damages for the retention of the money.”

This case is strongly in point. If a mandamus is disobeyed, the remedy is by attachment for contempt; in this plea under consideration we have practically a mandamus executed by process of attachment, a coercive proceeding, quasi criminal, yet civil in form and results, set in motion at the instance of Fuller, as a means of private redress which was effective. "We will presume that the United States court had jurisdiction, a,nd acted rightly within its power for the purposes of thisquestion. Beverly v. Stephens, 17 Ala., 701. And unless the want of jurisdiction was so apparent as to render the proceeding void on its face, we could not disregard its action. Baxter v. Brooks, ante, p. 173. Especially when it has been invoked by the party against whom the proceeding is pleaded.

The first paragraph of the answer avers the identity of the subject matter in the United States court with the subject matter of this case; the demurrer admits the fact. If the subject matter in both cases is the same, and the parties substantially the same, as is also averred and admitted, the plea is certainly good. • Recovery from one joint trespasser is a bar to a suit against another; so it can make no difference that Taylor and Scarlett were not parties to the proceedings in the United States court. As to Walker, at least, the plea is good unless from the nature of the proceedings in the United States court, as set up in the answer, we are bound to regard it as purely criminal and punitive and in no manner remedial.

The answer states that it was remedial, and resulted in securing to Fuller the price of his goods. Now should we allow the allegation of the answer that it was a proceeding for contempt, to override the other admitted allegations of the identity of subject matter, and that it was a proceeding instituted by petition for the object effected? The answer is good on its face, for it shows identity of subject matter and parties which is the true test. Ham. on Es., sec. 29. In the case of Eads v. Brazelton, 22 Ark., 516, an injunction was disobeyed, and the court below attached the recusants for contempt, and fined them one thousand dollars as damages to Brazelton for obstructing him in his work in raising a lost steamer. On appeal to this court, the decree which had enjoined Eads, in the court below, was reversed, and the cause was remanded with instruction to dissolve the injunction, which had been granted by the decree below, but ordered that a decree be rendered in favor of Brazelton for the $1,000 fine as damage for being obstructed in his work. Judge Fairchild, in delivering the opinion of this court, after ordering as above stated, uses this language: If the fine inflicted had been considered in the court below, and had been a punishment for the contempt of the two defendants’ disobedience to the process of the court, a different decree would have been called for upon this branch of the case.” This ruling recognizes the principle very strongly that, in certain cases, process for contempt can be used to effect a civil remedy, and when so used we must regard it, when chosen by a litigant, and when it results in satisfaction, as exclusive, when it covers the same subject matter, which may be involved in a subsequent litigation.

In the case of Pitman, 1 Curt. Cir. Ct., 186, the United States marshal petitioned the United States court of Maine, and instituted a proceeding — very similar to the one invoked against Walker — as an officer of court, to compel Pitman, the clerk, to pay over money improperly received from the marshal on charges of fees against the United States which had been disallowed.

The court sustained the marshal, and decided that proceedings in the nature of proceedings for contempt was his proper remedy. After attaining satisfaction in that case, the marshal would not have been allowed to sue the clerk in assumpsit, for money had and received, or by any form of civil remedy to enforce the same demand. We are not called upon to determine, and do not decide that this contempt proceeding against Walker, without satisfaction, would have been an answer to this action. That question is not before us. In the ordinary case of a mortgage, the mortgagee has three concurrent remedies, all of which he can invoke at will. Yet after suing on the debt at law and getting his money, he would not be allowed to bring ejectment at law, or foreclose in equity. We therefore find that there is nothing in the allegation of Walker’s answer, that the proceeding in the United States court against him was for contempt, which will override and annul the other averments of identity of subject matter and parties.

The demurrer should have been overruled.

For this error let the judgment of the circuit court of Crawford county in the cause be reversed, and the cause remanded to that court, with instructions to overrule the demurrer to the first paragraph of the joint answer of Walker and Taylor, and proceed in accordance with law, and not inconsistent with this opinion.

Hon. David Walker, J., did not sit in this case.