(after stating the facts). It is provided by subdivision a, § 69, Bankr. Act (Act July 1, 1898, c. 541, 30 Stat. 565, [U. S. Comp. St. 1901, p. 3451]), that:
“A judge may, upon satisfactory proof by affidavit that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected, or is neglecting, or is about to so neglect his property that it has thereby deteriorated, or is thereby deteriorating, or is about to thereby deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued, the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained.”
By subdivision “e” of section 3 of the same act, it is provided that if a petition for a decree adjudging one an involuntary bankrupt “be dismissed by the court, or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond.”
The case shows that after the entry of the judgment of the court below, made in pursuance of the former decision of this court, directing a dismissal of the bankruptcy proceedings as against Fannie J. Lott and Lemuel W. Nixon, on the ground that they were not members of the copartnership known as the “Silver City Mercantile Company,” those persons filed their petition in the bankruptcy court for the recovery by them of judgment against the petitioning creditors, and against the obligors upon the bonds filed on their behalf, under and by virtue of the provisions of subdivision “e” of section 3 above quoted, for counsel fees, costs, disbursements and expenses incurred by them in the proceedings, which petitions, after contest, resulted in the entry of judgment by the court below, adjudging that the petitioners, Fannie J. Lott and Lemuel W. Nixon, recover of the petitioning creditors their costs, disbursements, and counsel fees incurred in the bankruptcy proceedings, taxed at $4,510.50, the amount of which judgment they received. We think the court below was right in holding them concluded by that judgment. It is true that in those petitions they did not include “damages,” which by the present proceeding they seek to recover, hut we are of the opinion that they are hound by the general rule that a party is not entitled to split up his cause of action, and maintain a separate and distinct suit for each separate and distinct imm entering into that cause, which would be the necessary result oi sustaining the plaintiffs in error in their contention here.
*576As has been seen, the provisions of the bankruptcy act itself are to the effect that, in the event a petition for a decree adjudging a party an involuntary bankrupt 'be dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by the seizure, taking, or detention of his or their property, which counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bonds. The cause of action, and the sole cause of action, was the wrongful seizure of the petitioners’ property, and for that wrong the statute says, in effect, that the injured party may'recover “all costs, counsel fees, expenses, and damages.” These are the elements entering into and constituting parts and parcels of the cause of action, and manifestly do not constitute separate and distinct causes of action for which separate and distinct suits or actions may be brought. 3 Sutherland on Damages, 183, 372; Bendernagie v. Cocks (N. Y.) 32 Am. Dec. 448; Wichita & W. R. Co. v. Beebe (Kan. Sup.) 18 Pac. 502; Kaehler v. Dobberpuhl (Wis.) 18 N. W. 841; Threatt v. Mining Co. (S. C.) 26 S. E. 970; Herman v. Felthousen (Wis.) 90 N. W. 432; Dawson v. Baum (Wash. T.) 19 Pac. 46; Pomeroy’s Remedies (4th Ed.) pp. 459, 477.
The “damages” now claimed by the plaintiffs in error, being a part of their indivisible cause of action, should and could only have been recovered in their prior action thereon; for, as said by Chief Justice Waite for the Supreme Court, in the case of Baird v. United States, 96 U. S. 430, 432, 24 L. Ed. 703:
“It is well settled that, where a party brings an. action for a part only of an entire indivisible demand, and recovers judgment, he cannot subsequently maintain an action for another part of the same demand. Warren v. Comings, 6 Cush. (Mass.) 303. Thus, if there are several sums due under one contract, and a suit is brought for a part only, a judgment in that suit will be a bar to another action for the recovery of the residue.”
There is no merit in the suggestion for the plaintiffs in error that the judgment awarding them $4,510.50 for costs, disbursements, and counsel fees, is void, on the ground that the court had no jurisdiction to enter such judgment against the petitioning creditors. A court of justice will not entertain such an objection by parties at whose instance such judgment was entered, and who have received and enjoyed the fruits of that judgment. “It may be laid down as a general proposition,” said the Supreme Court, in the case of Davis v. Wakelee, 156 U. S. 680, 689, 15 Sup. Ct. 555, 558 (39 L. Ed. 578), “that where a party assumes a certain position in a’ legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”
We think nothing more need be said to show that the judgment of the court below should be affirmed.
The judgment is affirmed.