Hirr, C. J.,
(after stating the facts). W. T. Dunbar filed a suit for partition in Crawford Circuit Court against E. C. Dunbar, seeking a partition of a farm owned jointly by them known as the “Sharp Earm.” E- C. Dunbar answered, and asked a transfer to the chancery court. The transfer was denied, and he excepted, and the cause was continued for the term. Thereafter, and before the next term of the circuit court, E. C. Dunbar filed suit in the Crawford Chancery Court against W. T. Dunbar, alleging that they had purchased the Sharp Earm in co-partnership, and thereafter conducted a farming partnership, which he asked to be dissolved, their accounts settled, and the land partitioned, and set forth the pendency in the circuit court of the action therein brought against him by the defendant in this suit, but asserted that he was entitled to have a court of equity settle and adjust their accounts. The defendant aptly objected to the jurisdiction of the chancery court, but that court entertained it, and the defendant has, after due notice, applied here for a writ of prohibition to the chancery count, and its chancellor. The facts are stated in detail in the preceding statement.
The circuit courts, and the chancery courts have concurrent jurisdiction for the partition of real estate. The statutory remedy of partition is cumulative to the equitable remedy, and either may be pursued. Patton v. Wagner, 19 Ark. 233; Moore v. Willey, 77 Ark. 317; Lester v. Kirtley, 83 Ark. 554.
While these remedies are concurrent, it must not be understood that concurrent remedies may be pursued concurrently. Mr. Works says: “Where two or more courts have concurrent jurisdiction, t’he one which first takes cognizance of a cause has-the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgment or decree.” Works on Courts and their Jurisdiction,, sec. 17.
Mr. Bailey says: “In the distribution of powers among courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. -Therefore it has been wisely and uniformly determined that whichever court, of those having jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain throughout, to the exclusion of another; and this jurisdiction extends to the execution of the judgment.” 1 Bailey on Jurisdiction, § 77.
The Supreme Court of the United States says that this prop'osition is firmly established. “When a State court and a court of the United States may each take jurisdiction of a matter, the. tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.” Harkrader v. Wadley, 172 U. S. 148.
Judge Thayer, speaking for the Circuit Court of Appeals of this circuit, thus expresses it: “The doctrine is well settled that when a court, in the progress of a suit properly pending before it, takes possession of property, either under a writ of replevin or attachment, or by other mesne or final process, or by the appointment of a receiver or assignee, its jurisdiction over the property for the time being becomes exclusive, and no other court can lawfully interfere with the possession so acquired. While property is so held, it cannot be sold under the judgment,, sentence, or decree of any other tribunal. Moreover, so long as the property remains in custodia legis, no other court, unless by special leave of the court which first acquired jurisdiction, can lawfully proceed with the trial and determination of a suit, the object of which is to establish a lien against the property, or to subject the specific .property to the payment of debts, or which may result in creating conflicting rights or titles thereto. The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.” Merritt v. American Steel-Barge Co., 79 Fed. 228.
The only difference between the suit in the circuit court and the suit in the chancery court is that in the latter court the complaint alleges that the lands were purchased in partnership, and that the plaintiff and defendant thereafter owned and operated the same in partnership. In each suit a partition of the lands is prayed. Other than asking for a dissolution of the farming co-partnership between them, the relief asked in the chancery court is the same as that asked in the answer in the circuit court, with the addition in the chancery court that the excess in plaintiff’s favor on the accounting be declared a lien upon the property. In other respects the relief sought by both parties in each court is identical — the partition of the real estate and the adjustment of their respective rights growing out of a settlement of their joint ownership of the Sharp Farm.
In the circuit court the defendant set forth facts which he alleged entitled him to transfer the case to the chancery court. The circuit court overruled his motion to transfer. Whether that court erred in overruling it is not the question here. It had jurisdiction to rule upon that motion, and had jurisdiction of the parties and of the subject-matter of the suit; and if it erred in refusing to transfer the cause to the chancery court, that error can be corrected in this court on appeal, and not otherwise.
If the allegations of the purchase in partnership of the property and the farming partnership thereafter are true and are material to F. C. Dunbar’s rights, they should have been made in the answer in the circuit court and the lien sought therein prayed. Section 6098 of Kirby’s Digest says that “the defendant may set forth in his answer as many grounds of defense, counterclaim and setoff, whether legal or equitable, as he shall ■have.” In construing that section, this court said: “They had no right to bring a separate action in chancery to obtain relief they might have had in the original suit by making full defense, or preparing to do so, in their application to set aside the judgments.” Ward v. Derrick, 57 Ark. 500.
' In Daniel v. Garner, 71 Ark. 484, it was said: “Under the statutes of this State a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are exclusively cognizable in equity, he is entitled to have them tried as an equitable proceedings, and for this purpose to a transfer of the cause to the equity docket or chancery court, as the case may be.” To the same effect see Church v. Gallic, 76 Ark. 423, and authorities there cited. The Code does not tolerate ■ a partial defense in one court, reserving other defenses to be asserted in another court, in event of failure in the first court. All defenses must be interposed, and then the cause will be tried in the appropriate court. If not interposed, they are waived, and cannot be made the subject-matter of an equitable action.
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Hirr, C. J.,
(after stating the facts). W. T. Dunbar filed a suit for partition in Crawford Circuit Court against E. C. Dunbar, seeking a partition of a farm owned jointly by them known as the “Sharp Earm.” E- C. Dunbar answered, and asked a transfer to the chancery court. The transfer was denied, and he excepted, and the cause was continued for the term. Thereafter, and before the next term of the circuit court, E. C. Dunbar filed suit in the Crawford Chancery Court against W. T. Dunbar, alleging that they had purchased the Sharp Earm in co-partnership, and thereafter conducted a farming partnership, which he asked to be dissolved, their accounts settled, and the land partitioned, and set forth the pendency in the circuit court of the action therein brought against him by the defendant in this suit, but asserted that he was entitled to have a court of equity settle and adjust their accounts. The defendant aptly objected to the jurisdiction of the chancery court, but that court entertained it, and the defendant has, after due notice, applied here for a writ of prohibition to the chancery count, and its chancellor. The facts are stated in detail in the preceding statement.
The circuit courts, and the chancery courts have concurrent jurisdiction for the partition of real estate. The statutory remedy of partition is cumulative to the equitable remedy, and either may be pursued. Patton v. Wagner, 19 Ark. 233; Moore v. Willey, 77 Ark. 317; Lester v. Kirtley, 83 Ark. 554.
While these remedies are concurrent, it must not be understood that concurrent remedies may be pursued concurrently. Mr. Works says: “Where two or more courts have concurrent jurisdiction, t’he one which first takes cognizance of a cause has-the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgment or decree.” Works on Courts and their Jurisdiction,, sec. 17.
Mr. Bailey says: “In the distribution of powers among courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. -Therefore it has been wisely and uniformly determined that whichever court, of those having jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain throughout, to the exclusion of another; and this jurisdiction extends to the execution of the judgment.” 1 Bailey on Jurisdiction, § 77.
The Supreme Court of the United States says that this prop'osition is firmly established. “When a State court and a court of the United States may each take jurisdiction of a matter, the. tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.” Harkrader v. Wadley, 172 U. S. 148.
Judge Thayer, speaking for the Circuit Court of Appeals of this circuit, thus expresses it: “The doctrine is well settled that when a court, in the progress of a suit properly pending before it, takes possession of property, either under a writ of replevin or attachment, or by other mesne or final process, or by the appointment of a receiver or assignee, its jurisdiction over the property for the time being becomes exclusive, and no other court can lawfully interfere with the possession so acquired. While property is so held, it cannot be sold under the judgment,, sentence, or decree of any other tribunal. Moreover, so long as the property remains in custodia legis, no other court, unless by special leave of the court which first acquired jurisdiction, can lawfully proceed with the trial and determination of a suit, the object of which is to establish a lien against the property, or to subject the specific .property to the payment of debts, or which may result in creating conflicting rights or titles thereto. The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.” Merritt v. American Steel-Barge Co., 79 Fed. 228.
The only difference between the suit in the circuit court and the suit in the chancery court is that in the latter court the complaint alleges that the lands were purchased in partnership, and that the plaintiff and defendant thereafter owned and operated the same in partnership. In each suit a partition of the lands is prayed. Other than asking for a dissolution of the farming co-partnership between them, the relief asked in the chancery court is the same as that asked in the answer in the circuit court, with the addition in the chancery court that the excess in plaintiff’s favor on the accounting be declared a lien upon the property. In other respects the relief sought by both parties in each court is identical — the partition of the real estate and the adjustment of their respective rights growing out of a settlement of their joint ownership of the Sharp Farm.
In the circuit court the defendant set forth facts which he alleged entitled him to transfer the case to the chancery court. The circuit court overruled his motion to transfer. Whether that court erred in overruling it is not the question here. It had jurisdiction to rule upon that motion, and had jurisdiction of the parties and of the subject-matter of the suit; and if it erred in refusing to transfer the cause to the chancery court, that error can be corrected in this court on appeal, and not otherwise.
If the allegations of the purchase in partnership of the property and the farming partnership thereafter are true and are material to F. C. Dunbar’s rights, they should have been made in the answer in the circuit court and the lien sought therein prayed. Section 6098 of Kirby’s Digest says that “the defendant may set forth in his answer as many grounds of defense, counterclaim and setoff, whether legal or equitable, as he shall ■have.” In construing that section, this court said: “They had no right to bring a separate action in chancery to obtain relief they might have had in the original suit by making full defense, or preparing to do so, in their application to set aside the judgments.” Ward v. Derrick, 57 Ark. 500.
' In Daniel v. Garner, 71 Ark. 484, it was said: “Under the statutes of this State a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are exclusively cognizable in equity, he is entitled to have them tried as an equitable proceedings, and for this purpose to a transfer of the cause to the equity docket or chancery court, as the case may be.” To the same effect see Church v. Gallic, 76 Ark. 423, and authorities there cited. The Code does not tolerate ■ a partial defense in one court, reserving other defenses to be asserted in another court, in event of failure in the first court. All defenses must be interposed, and then the cause will be tried in the appropriate court. If not interposed, they are waived, and cannot be made the subject-matter of an equitable action.
If it be admitted that the suit in chancery has set forth an equitable cause of action and an equitable remedy in favor of the plaintiff therein, such cause and remedy are not available to the plaintiff in that suit; for, as defendant in the circuit court, it was his duty to have pleaded this equitable cause and equitable remedy in his answer in the circuit court, and upon it move to transfer to the chancery court. And, as above stated, if the court had erred in refusing to transfer it, that was an error that could have been corrected on appeal. But this was not done; and now an alleged equitable cause of action, and equitable remedy are sought to be brought in a court of chancery after an opportunity had been given him to plead it in a court of law and pray a transfer .to chancery; and this is not permissible. It would necessarily bring courts of co-ordinate jurisdiction into unseemly and unnecessary conflict. If the statutes are obeyed, these conflicts in this respect are impossible. Either court had jurisdiction to partition the land. If there were any matters exclusively cognizable in chancery, the right to trial there could only be obtained by pleading it and moving the transfer. If error is committed in refusing to make a transfer when the transfer is proper, it can be corrected in this court on appeal, but cannot be corrected by assertion of the same defense or an omitted defense in the chancery court while the circuit court has jurisdiction of the parties and the subject-matter of the controversy. This being true, then the question before this court is as to the proper remedy.
A suit was brought in the Superior Court of Detroit, proceeded to judgment and to appeal to the Supreme Court of Michigan. While the cause was still pending in the Supreme Court, one of the parties brought a suit in the Wayne Circuit Court in chancery, seeking in effect to obtain a new trial of the matter adjudicated in the superior court. The superior court and the circuit court in chancery were of co-ordinate jurisdiction. Application was made to the Supreme Court of Michigan for a writ of prohibition to the circuit court in chancery, and the Supreme Court, speaking through Mr. Chief Justice Cooley, said: “It is a familiar principle that when a court, of competent jurisdiction has become possessed of a case; its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of; and.no court of co-ordinate authority is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such consideration exclusively, but is enforced to prevent unseemly, expensive and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely. The country has witnessed some such conflicts in which Federal and State courts of co-ordinate powers have unguardedly or unadvisedly undertaken to hamper or restrain each other’s action; and the mischiefs of which such cases are suggestive are quite as likely to arise when courts existing as part of the same system intrude with their process upon each other’s authority. The writs prayed for should issue.” McLean v. Wayne Circuit Judge, 52 Mich. 258.
This reasoning of this great jurist is so manifestly sound and so throughly in line with the decisions of this court upon the office and use of the writ of prohibition that it is unhesitatingly accepted as a sound precedent to follow.
The writ of prohibition only lies to a court, and probably in some exceptional cases to a judge at chambers. Section 5157, Kirby’s Digest. Russell v. Jacoway, 33 Ark. 191; Reese v. Steel, 73 Ark. 66. Relief is asked against the receiver, commissioners and master appointed by the chancery court. The writ of prohibition would not run to them; but it is not to be assumed that they would, in the face of the judgment of this court, holding the proceeding in which they were appointed to be void, proceed in the discharge of the duties imposed upon them in that void proceeding. If they should do so, however, the remedies of the petitioner, both for prevention and redress, are ample.
It is the order of the court that the writ of prohibition issue to the Crawford Chancery Court, and its chancellor, prohibiting the entertainment of the said suit of E. C. Dunbar against W. T. Dunbar in that court and all proceedings therein.