concurring.
The facts of this case are stated in the opinion of my brother Lumpkin, to which I refer. A great many questions were discussed at this bar, on the hearing of this cause, to which I shall not advert. I shall briefly discuss that upon which it seems to be conceded the judgment must turn. "Whether the plaintiff in the bill ought to fail, on the ground that he comes into Equity to enforce the collection of usurious interest, may be a very serious question. Believing that the judgment below ought to be affirmed upon grounds wholly independent of it, I feel myself free to omit its discussion- — leaving that work to my brother Lumpkin, if he sees proper to encounter it.
[2.] Bills of review are founded either upon errors of law, in the decree sought to be reviewed, or upon the discovery of new matters of facl.
This bill goes upon the first ground. It charges error in law,in the decree originally made by Judge Sturgis, at the first term' of the cause of Felix Lewis vs. George Hargraves and William-Wynn. That order is in these words : “ The Court having sustained the bill, and the .party defendant having accepted the money tendered, Ordered, that the said bill be sustained, and the-injunction made perpetual.”
If this be an order of the Court, wholly independent of any settlement of the cause by the parties out of Court, my own opinion is, that it is subject to review. If, however, it is to be taheñas the evidence of a voluntary settlement between the parties, or to change the phraseology, if it is an order or judgment of the Court, founded on the act of the parties, it is not subject to review. If the latter, it is admitted by counsel for the complainant, not to be subject to review ; for, however such a settlement might be opened, in a proper case made in Chancery, it cannot be *128reached by a bill of review. The complainant is estopped from a review of his own act. A review for error in law must be founded on a judgment of the Court. To this issue, then, this cause is narrowed-: was the order in question founded on a settlement made by the parties ? Were this question an open one, I should rule that it was. But in the view which I have taken of this whole case, I am well satisfied that this is not an open question. It is settled by the judgment of this Court in the case of Hargraves and another vs. Lewis, reported in 3 Kelly, 162.
That was a case which came before this Court on a bill of exceptions and writ of error, taken to a decision of the Circuit Court, on the character and effect of the order in question. The parties then before this Court, were the parties to the bill now sought to be reviewed. Hargraves and Wynn, the original complainants to the present bill of review, and Felix Lewis, the defendant, were all before this Court in that case, and were heard. The decision then made on that order, was on the same subject matter, and between the same parties now before us. That order must be, therefore, res adjudicata, between the parties. It is desirable, however, to be more particular as to the manner in which the question came up in the case in 3 Kelly, in order to understand distinctly what was decided in that case, and in order to determine whether the decision covers the question now before us. The original bill was filed by Felix Lewis against Hargraves and Wynn, to enjoin the collection of usurious interest charged to be embraced in a judgment which Hargraves had obtained against Wynn. That bill charged that the note upon which that judgment was founded, and upon which Wynn was indorser, was taken by Hargraves in ligu of a note made by the complainant Lewis; that his (Lewis’ note, and those of which it was a renewal,) was given to Hargraves for the loan of a sum of money at usurious interest; that he (Lewis) was the principal debtor to Hargraves; that Wynn had fraudulently combined with Hargraves, and confessed the judgment for principal, lawful and usurious interest, in order to force him to pay it; that if Wynn, who was only a surety on the debt, should pay the usurious interest, he (Lewis) would be compelled to refund it to him, and therefore, he prays an injunction against the judgment, so far as the usurious interest is concerned. Lewis’ bill makes a tender of the principal and lawful interest. Such was the original bill in *129brief. The injunction was granted. Hargraves answered the bill, and moved in Chambers for a dissolution of the injunction, which motion was refused. At the same time, the Judge in Chambers passed an order, reciting that the sum of six thousand, five hundred dollars had been tendered in satisfaction of the judgment in favor of Hargraves against Wynn, and lhatit was deposited in the hands of the Clerk, and directed it to be paid to the attorneys of Hargraves, in full payment of the judgment, unless the Court should decide that the complainant, Lewis, should pay an additional sum as interest upon interest. ' Subsequently at Chambers, and before the appearance term of the bill, the Court passed another order, notifying the attorneys that the settlement before made was final and conclusive, and giving some reasons for it. Afterwards, and at the appearance term of the bill, the order was passed which is the groundwork of the present controversy, and which I have before literally copied. Thus the case stood until the May Term of the Superior Court of Muscogee County, 1846, when Hargravesmoved a rule t.o dismiss the cause from the docket. Lewis responded.to the rule, that the cause had been finally disposed of by the order which I last referred to. The question then before the Circuit Court was, what was the effect of that order ; and the determination was that it finally disposed of the cause, and Hargraves’ motion was refused. From that decision Hargraves appealed to the Supreme Court; and the question made for us was, whether there was error in that decision; in other words, what was the character and effect of the order first copied in this opinion ? The Supreme Court affirmed the decision of the Circuit Judge, and in their judgment defined the character of that order. Now this MU of review is founded upon that order, charging error in law. The Circuit Judge dismissed this bill; and upon that decisión the question comes before us by another writ of error, to wit: is there error in law in that order or 'decree l It is conceded that if it be founded on a settlement between the parties, there can be no error to review. I say that it is, and that this Court, when the cause came first before us,so decided. With that decision I am satisfied. If I were not, I should be very loth to permit the decisions of this Court to be reviewed thus by indirection.
All that remains for me to do, is to show that this Court has decided that the order in question was founded on a voluntary set*130tlement, and is virtually the act of the parties. I shall endeavor to show that such was the judgment of the Court, and not alone the dictum of the Judge writing out the opinion ; for I think it is manifest that the judgment was founded upon the fact that there was á settlement; and without that assumption we could not have given the judgment. That fact, evinced in. the order itself, is the prime element of the judgment. Without it there would have been no such judgment. It is the judgment. The assumption of Hargraves, in the Court below, in support of his rule, was that these orders of Judge Sturgis were null and void, and for that reason did not dispose of the cause. And the complaint made of the decision of the Court below, before this Court, was that it gave effect to those orders, when, according to law, they were void. It will be seen, by reference to the argument of counsel reported in 3 Kelly, that the plaintiff in error in that case took the ground that the final order, passed at the appearance term of the bill, was coram non judice. This Court states the question made in that case thus : “ The Court, after argument, had discharged the rule ; and that is the judgment to which Hargraves, the plaintiff in error, excepts, and complains that the Court erred in ruling that the orders passed by Judge Sturgis finally disposed of the bill, because said orders are void and of no effect, in this, that the Judge of the Superior Court, as Chancellor, has no power to grant a final decree in this cause, without the intervention of d Jury. Thus we have the question for the revision of this Court.” 3 Kelly, 164. This Court being thus called upon to decide upon the validity of those three orders, considered separately the two first, and giving reasons at large, decided in the following words: “ under these views of this subject, it is the judgment of this Court, that those orders were passed without authority, and are void and of none effect.” 3 Kelly, 168.
Passing, then, to the consideration of the third order passed by Judge Sturgis, and which is the order now being considered, this Court say, “having disposed of the orders in Chambers, by declaring them null, we proceed to inquire into the character and effect of the order passed in the cause at the appearance term. This was claimed to be a decree, by the counsel for the plaintiff’ in error. We do not so consider it. If we did view it in the light of a decree, we would, for the reasons, in part, upon which we pronounce the other orders null, declare this null also. It is very *131brief, and sufficiently informal. It recites that, the Court having sustained the bill, and the party defendant having accepted the money tendered, ordered, &c. It was competent for these parties to settle this cause out of Court, and to agree that an order disposing of it should be entered upon the minutes of the Court, Such an agreement seems to be shadowed forth in this order; the terms of it are not distinctly stated; but it is stated that the party defendant had accepted the money tendered in the bill. Discarding, then, from our consideration the previous orders altogether, as wholly void, we infer that this acceptance was voluntary, and that there was a settlement between the parties, and that this order is the evidence of it. "We infer, likewise, as the Court had the power to enter such a settlement in term upon the minutes, that it was regularly made; and if so, this was a final disposition of the cause.” 3 Kelly, 169.
Thus it is manifest that in the case heretofore before this Court, we were called upon to pass upon the validity of these orders, and to determine their character and effect. The two first orders were adjudged null and void; that was their character, and of course they could have no effect. In determining upon the third, (and still be it remembered, the one now before us,) we characterize it as not being a decree; that is, not purporting to be a decree of the Court, passed upon its own authority; meaning, obviously, to use the word decree as contradistinguished from the action of the Court founded upon a settlement between the parties. The Court say, that if they did view it in the light of a decree, they would pronounce it void also. How, then, do they view the matter? They rule that there was a voluntary settlement, and that the order is the evidence of it; and so characterizing it; and because there was a voluntary settlement, they give effect to it, and affirm the judgment below; so that it is, to my mind, perfectly manifest that this Court has adjudged this order to be founded on asettlement. It is difficult for me to imagine any other construction of the case in 3 Kelly. No one, it seems to me, can read that case, without seeing that, upon their own principles, this Court could not have given any effect to that order, without first determining that there was a settlement, and that it was the evidence of a .settlement.
Called upon now to say whether that order is subject to review, I say it is not, because it is only an order passed by the *132Court to consummate a settlement made by the parties. It is tlie act of the parties. As I before stated, I will not now discuss the question whether we decided right in determining as we did. As I am satisfied with that decision, it would be a useless labor to do so now. It is both convenient and right, upon this occasion, to rest upon the maxim, stare clecisis et non quieta movere.
That part of the order which perpetually enjoins the execution, is merely surplusage. If there was a settlement of the cause, it disposed of all that was in controversy in it.
Let the judgment below be affirmed.