1. PLEADING AND PRACTICE; ANSWER TO PLEA OF "RES ADJUDICATA." — It is a sufficient answer to a plea of res adjudicata in an action for the return of certain moneys mentioned in the complaint, that the question of plaintiff’s right to the return of the money was not and could not have been put in issue in the former case.

2. EXECUTION SALE; RECOVERY OF INTEREST ON DEPOSIT. — Plaintiff’s land was sold under a levy of execution which was properly held to have been "null, for the reason that the court was without jurisdiction to issue the same." Being thus threatened with the wrongful deprivation of the use of its land, plaintiff deposited under due protest its established equivalent in money: Held, that plaintiff is entitled to recover from the tort feasor interest at the legal rate on the money thus turned over to the sheriff.

The only ground upon which the defendants and appellants rest their claim of error in the judgment of the court below is the alleged erroneous denial of their plea of res adjudicata by the trial judge. We are of opinion however that the trial judge properly disregarded their contentions in this respect. Without examining the contentions of the plaintiff as to alleged failure of defendants to plead the former adjudication in due form and as to the lack of complete identity of the subject matter in the present and the former action, it is a sufficient answer to the plea of res adjudicata to say that the question of the right of the plaintiffs to the return of the money prayed for in their complaint was not and could not have been put in issue in the former action. The true force and effect of the former adjudication is not to bar the claim of the plaintiff to recover the money paid out by them pending the former proceedings, but rather to establish their right to recover upon proof of their allegations as to the fact of payment, and the circumstances under which they were compelled to make such payment, in order to avoid unnecessary loss and injury flowing from the levy of execution which was held to have been "null, for the reason that the court was without jurisdiction to issue the same." We conclude therefore that the trial judge correctly disposed of the principal question at issue in the court below.

We think however that plaintiff’s appeal from his ruling denying interest on the moneys paid out by them is well taken. As counsel well says, had the appellant, whose land was actually sold under a wrongful execution in this case, been deprived of the use of the land by reason of said sale, there can be no doubt of its right to recover, as damages for the wrong, compensation for the loss of the use of the land. Instead of standing idly by and suffering the unnecessary infliction of such damage, the appellant avoided the loss of the use of its land, by depositing in its place, under due protest, its established equivalent in money. In other words, the appellant, being threatened with the wrongful deprivation of the use of its land, took the necessary steps to avoid such deprivation, and underwent, instead, the deprivation of the use of an equivalent sum of money. This was done in pursuance of the obligation which rests upon every member of the community who is the victim of a tort, to do all within his power to diminish the resultant damage. It was an act done for the benefit of the tort feasor, who thereby became liable to compensate for the lost use of the money, instead of the lost use of the land. It goes without saying, of course, that no such act could be done to the prejudice of the tort feasor, in increase of the resultant damages, and if it had been shown that the use of money was of greater value than the use of the land, the liability of the tort feasor would be limited to compensation for the lesser sum. But no such contention is here made, and no such question is involved. The appellant substituted money, in place of land, and suffered the loss of use of the former instead of loss of said use the latter. By the amount of the loss of said use the appellant has been damaged and is entitled to compensation.

The judgment of the lower court should therefore be modified by allowing, in addition to the amount awarded to the plaintiff therein, interest at the rate of 6 per cent per annum on the money turned over to the sheriff.

Arellano, C.J., Moreland, Trent, and Araullo, JJ., concur.