therefore, that the court erred in transferring such cause from the law to the equity docket. The facts, as presented in the transcript before us, show that the decision of the controversy as to the title to this land turns mainly on the question whether Cole had abandoned his homestead in the premises before the levy and sale upon which the deed of Mette & Kanne was based, and under which they claim. With the exception of this question of abandonment, there seems to be no dispute as to the facts, and little room for 508 doubt as to the law. But this was a question of fact that the appellants had the right to submit to a jury, and the transfer to equity over their objections, by which they were deprived of this right, was prejudicial error: Ashley v. Little Rock, 56 Ark. 391; Sandels and Hill's Digest, sec. 5617. The judgment is therefore reversed, and the cause remanded for trial at law. EQUITY-JURISDICTION TO TRY TITLES.-In equitable suits, title to realty may sometimes be tried on the principle that jurisdiction, having once attached, shall be made effectual for the purposes of complete relief: See monographic note to King v. Mason, 89 Am. Dec. 428. It is well settled that equity has no jurisdiction to settle the title and boundaries of land where the plaintiff has no equity against the party who is holding the land: Note to Smith v. Gardner, 53 Am. Rep. 347. See Humboldt Co. v. Lander Co., 22 Nev. 248; 58 Am. St. Rep. 750, and note. DEEDS TO PARTNERSHIPS.-As a partnership is not a person, it is impossible for it, as a partnership, to hold the legal title to real estate: See monographic note to McCormick's Appeal, 98 Am. Dec. 197. However, though at law a deed made by or to a partnership in the firm name, the full name of neither partner being given, will not pass title to the land, such is not the rule in equity, where the equitable title is deemed to pass: Frost v. Wolf, 77 Iowa, 455; 19 Am. St. Rep. 761. See Menage v. Burke, 43 Minn. 211; 19 Am. St. Rep. 235, where a different holding was made as to a mortgage. MOCRACKEN v. PAUL. [65 ARKANSAS, 553.] EXECUTION SALES-REVERSAL OF JUDGMENT.-RESTITUTION.-Plaintiff purchasing at his execution sale is, on reversal of the judgment under which the sale was made, entitled to the benefit of the order of restitution, to enable him to restore the property in specie, if he can, and if he cannot he is responsible for its loss. If the property is purchased by a third person, the measure of damages is the price it brought at the sale and interest, and if the defendant is the purchaser, there can be no recovery against the plaintiff, except for money paid, because the defendant has what he claims. J. S. Jordan and Rose, Hemingway & Rose, for the appellant. G. B. Oliver and J. D. Block, for the appellee. 555 BUNN, C. J. The appellant, McCracken, obtained judgment against the defendants, and caused their property, consisting mostly of timber, lumber, and sawmill machinery, to be levied on and sold to satisfy his judgment. An appeal was prayed from the judgment, but no supersedeas bond was given, and no supersedeas writ issued. At an adjourned day of the term of the court, the defendants having filed a second motion for a new trial, on the ground of newly discovered testimony, among others, and after the execution sale, the court sustained the second motion, and set aside the former judgment, under which the sale of the property was had. Defendants then filed their amended answer and cross-complaint, claiming damages growing out of the sale of their said property under the judgment aforesaid; and the plaintiff first demurred, which being overruled, he answered, and a new trial was had, resulting in a verdict and judgment against the plaintiff for the full value of all the property sold. Plaintiff filed his motion for new 556 trial, showing that he had newly discovered evidence as to the sale of the property, tending to show who were the real purchasers, but this was overruled, and this appeal was taken. The record is too complicated and confused to justify a more extended statement of the case. The trial court should have treated the amended answer and cross-complaint of defendants, as we now treat it, as a motion or petition for an order of restitution and prayer for damages in the alternative. That motion should have stated clearly and pointedly who was the real purchaser of the property sold. at the execution sale, and how much of it each purchaser, if more than one, purchased at the sale, so that the plaintiff might have been permitted to restore the property to the defendants, or to the court, as the case might be, and, failing to do so, show cause why he did not or would not do so. The plaintiff, in pursuing his remedy to collect his debt, was neither a trespasser nor wrongdoer in the true sense, but had obtained a valid judgment fairly, and no supersedeas had been issued to stay his proceedings. He was therefore entitled to the protection of the rule, now of universal application in such cases, which is in substance thus laid down by Freeman in his work on Judgments, and which we give here for the future guidance of the court in the trial of this cause. Plaintiff purchasing at his execution sale, on reversal of the judgment under which the sale is made, is entitled to the benefits of the order of restitution, so that he may restore the property in specie, if he can. If he cannot, he is responsible to the defendant for its loss. If the property is purchased by a third person, the measure of amages is the price it brought at the sale and interest, and if the defendant is the purchaser, there is no recovery against plaintiff, except for money paid, because the defendant has avhat he claims: Freeman on Judgments, secs. 482-484. Reversed and remanded. EXECUTION SALES-EFFECT OF REVERSAL OF JUDG◄ MENT.-When property of a defendant has been sold, under a judg ment afterward reversed, to a party to the judgment, the defendant may recover it back, or, if purchased by a third party, he may recover from the plaintiff the value thereof; but the title is unaffected by the reversal: Gould v. Sternberg, 128 Ill. 510; 15 Am. St. Rep. 138, and note. If the plaintiff is the purchaser, the defendant is entitled to a return of the identical property sold, in specie, though the same rule is not applied where the purchaser is a stranger to the judgment: See monographic note to Little v. Bunce, 28 Am. Dec. 369, 371, concerning the restitution of property upon the reversal of judgments. INDEX TO THE NOTES. ADMINISTRATORS, judgments against, when not enforceable in ADVERSE POSSESSION, founded upon mistake as to boundaries, 188. ALIMONY, change in after the entry of a final decree, 865. APPEAL, affirmance of the judgment estops sureties from denying bonds upon, defective in not being in double the amount of the bonds upon, defective, in not showing the residence and occupa- bonds upon, defective, respondent is the only person who can bonds upon, must be in substantial conformity to the statute, bonds upon, technical errors in, 198. bonds upon, when condition therein is not that prescribed by bonds upon, when judgment was in replevin and the bond in bonds upon, when the appeal was not taken in time, 200. bonds upon, which do not contain any affidavit on behalf of the estoppel of sureties upon to urge defects therein, 198-200. estoppel of sureties upon to urge that the notice of appeal was imperfect bonds upon, acceptance of by the respondent or his Imperfect bonds upon, affirmance of the judgment notwithstand- Imperfect bonds upon constitute good common law obligations, Imperfect bonds upon do not entitle the appellant to a stay imperfect bonds upon, estoppel of the sureties to object to, 199. APPEAL, imperfect bonds upon, estoppel of the sureties to ques- imperfect bonds upon, failure of to conform to the conditions imperfect bonds upon, respondent may object to, 198. imperfect bonds upon, sureties cannot urge formal defects in, imperfect bonds upon, waiver of objections to is irrevocable, imperfect bonds upon, waiver of objections to, when presumed, 199. right to, when not waived by accepting benefits under the judg- sureties on appeal bonds cannot urge defects therein, 202-204. 592. insurance, denial of all right to recover waives, 599. ARREST, caused by mistake respecting the identity of the person probable cause for, what is, 416, 417. without warrant, authority of officer to make, 657.. without warrant, when amounts to false imprisonment, 415. sureties on, how may avoid liability for a wrongful levy, 176. disbarment of for presenting false affidavits to clients, 558. BIGAMY, essentials of crime of, 170. former marriage, how may be proved in prosecutions for, 165. 153. adverse possession founded upon mistake as to, 188. adverse possession founded upon mistake of boundary lines, 153. monuments control courses and distances, 153. CARRIERS, actions against, when in tort and when in contract, bills of lading are both receipts and contracts, 182. bills of lading are presumed to contain the entire contract be- termination of their liability as such, 788. when become mere warehousemen as to goods in their pos- CONSIDERATION, promise of person to do what he is lawfully |