dissenting.
This is a bill of review to reverse a former decree of the Superior] Court, exercising jurisdiction in Chancery, under the Statutes of this State, made in a cause in which Felix Lewis was complainant, and George Hargraves and William L. Wynn, defendants. The object of the bill now sought to be reviewed, was tobe relieved against a judgment confessed by Wynn to Hargraves, for about the sum of ten thousand dollars, the original consideration of which is alleged to have been founded on a usurious contract. The main ground of equity asserted by Lewis in his bill, and upon which his title to relief is predicated is, that he was the principal borrower of the money from Hargraves, and that Wynn was his security only therefor, and that if Wynn is compelled to pay the entire amount of the judgment to Hargraves, as such security, he, Lewis, will be compelled to reimburse Wynn, as his security, for the whole amount of the judgment confessed by Wynn, as the security of Lewis, to Hargraves; therefore Lewis paid into the Clerk’s office, the principal and lawful interest admitted by him to be due Hargraves, amounting to the sum of six thousand five hundred dollars, and jn-ayed a perpetual injunction. against Hargraves, to restrain him from collecting the balance of his judgment so confessed by Wynn, as the security of Lewis, as before stated. The entire equity of Lewis, it will be perceived, is based on the allegation, that if Wynn, as his^ecarity, shall be compelled to pay the full amount of the judgment to Plargraves, that he, Lewis, will be compelled to refund to Wynn *133the amount so paid. At the first term of the Court after filing the original bill of Lewis against Hargraves, the Superior Court, being then in session, passed the following judgment or decree in the cause :
George Hargraves and ¥u. L. Wynn.
“ 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.”
I have thus stated the object of the bill, and the judgment or decree of the Court made thereon, as the same appears of record, which is now sought to be reviewed, and set aside for error apparent on the face of the record. In the bill of review there are several grounds of error alleged as being apparent on the face of the record and decree; but I shall only notice two of them — first, that there is no equity apparent on'the face of the original bill, which would entitle Lewis, the complainant, to any relief in a Court of Equity. Second, that it appears upon the face of the record, that the judgment or decree of the Court, perpetually enjoining the collection of Hargraves’ judgment, was made without the intervention of a Jury.
I will first consider Lewis’ right or title to relief, as exhibited on the face of the record; for if the record does not disclose any right or title in him, to have had the judgment or decree of the Court in his favor, perpetually enjoining Hargraves’ judgment, then there is error in law apparent on the face of the record. If I understand the rule established by a majority of this Court in Whitehead vs. Peck, Lewis, the complainant in the bill against Hargraves, had no right or title to maintain his bill in a Court of Equity, to have Hargraves’ judgment perpetually enjoined against Wynn, who was the security of Lewis; for, as I understand the rule established by the Court in that case, if Wynn, as the security of Lewis, had paid the usurious interest to Hargraves, he could not have recovered it from Lewis, for want of privity in law between them.
See the judgment of the Court in Whitehead vs. Peck, 1 Kelly’s Rep. 140.
If the rule established by the majority of the Court in Whitehead vs. Peck, is to stand, and be considered as binding authority *134on the Court, then, according to my understanding of it, as applicable to the record and decree now sought to be reviewed, it is conclusive against the title of Lewis to the equitable relief which he obtained, by the decree of a perpetual injunction against the collection of Hargraves’ judgment from Wynn, as the security of Lewis; and therefore, the bill of review ought to be sustained ■on that ground.
Since the adoption of the Constitution of 1798, there is no legislative enactment which declares, in express terms, that Equity [causes shall be submitted to, and tried by a Jury; but it is expressly declared by the 16th section of the Judiciary Act of 1792, and the 8th section of the Judiciary Act of 1797, that after an Equity cause is set down for hearing, “the Superior Court shall then submit the merits of the suit, with the evidence thereon, and all matters respecting the same, to a special Jury, who shall give their verdict on the same.” Wath. Dig. 480, 632. By the 5th section of the 4th article of the Constitution of 1798, it is declared, “ trial by Jury, as heretofore used in this State, shall remain inviolate.” Prince, 912. It is true that the Judiciary Acts of 1792 and 1797 were both repealed by the Judiciary Act of 1799; but the former Acts are cited, for the purpose of showing in what manner trial by Jury was used in this State, at the time of the adoption of the Constitution in 1798. By reference to the Acts of 1792 and 1797, it will readily be perceived that Equity causes were required to be submitted to, and tried by a special Jury. Before, and at the time of the adoption of the Constitution of 1798, trial by Jury in Equity causes was used in this State, and the Constitution expressly declares, that “trial by Jury, as heretofore used in this State, shall remain inviolate.” The right of the citizen then, to have his cause, pending on the Equity side of the Superior Court, submitted to a special Jury before a final decree is made against him, is expressly secured by the Constitution, of which right, neither the Legislature nor the Courts have the lawful authority to deprive him, without a reckless violation of the 5th section of the 4th article of that Constitution.
It appears upon the face of the record and decree sought to be reviewed and reversed, that a final decree of the Superior Court has been made, perpetually enjoining Hargraves, the complainant In the bill of review, from collecting his judgment from Wynn, without the intervention of a Jury. I repeat, it is apparent on *135the face of the record sought to be reviewed, that Hargraves has been deprived, cut off, and perpetually enjoined from the exercise of his legal right to collect his judgment, by the final decree of the Superior Court, exercising Equity jurisdiction, without having the benefit of the trial by Jury, heretofore used in this State, as secured to him by the Constitution; consequently, there is error in law apparent on the face of the decree. The parties to this record have been before this Court on two former occasions. The case first made its appearance at Americus, at the July Term, 1847, and the action of the Court thereon will be found reported .in 3 Kelly, 162. The only question made by the record in that case, for the judgment of this Court was, whether the Court below had erred in ruling, that the decree now sought to be reviewed and reversed, finally disposed of the hill filed by Lewis against Hargraves and Wynn. The Court below had ruled, that the bill was finally disposed of; that the cause was at an end by the judgment, or decree of the Superior Court thereon, as stated in the record; and this Court affirmed the judgment of the Court below in that case. In that judgment I concurred, holding with my brethren, that the order of the Superior Court, exercising jurisdiction in Equity, granting a perpetual injunction in the cause, was a final disposition of it; and that, I repeat, was the only question made by the record in that case, for the judgment of this Court. There stood the record of the Superior Court, having jurisdiction of the subject-matter, on the face of which was a prayer for a perpetual injunction against Hargraves j and there stood the order or decree of that Court granting the prayer of the bill, and making the injunction perpetual. Would it have been competent to have set aside the judgment or decree of the Superior Court, so appearing on the face of its record's, on motion, or in any other collateral manner ? Certainly not j and whatever reasons may have been given for the judgment of the Court in that case, the judgment itself, was right, both upon principle and authority. If a decree, made by a Court of Equity, has been signed and enrolled, so that the cause cannot be reheard, and a party seeks to reverse the decree, the remedy is by bill of review. 3 Paul’s Ch. Pr. 1726. 2 Maddocks Ch. Pr. 536. It is the practice in the English Court of Chancery, to embody the substance of the bill, pleadings, and answer in the decree ; but in the Courts of the United States, the decree usually *136contains a mere reference to the antecedent proceedings, without embodying them; but for the purpose of examining all errors of law, the bill, answers, and other proceedings are, in our; practice, as much a part of the record before the Court, as the decree itself. Story's Eq. Pl. 324, §407. Whiting vs. the Bank of the United States, 13 Peters’ Rep. 13.
'When this cause was before this Court in 1847, the judgment of the Court was, that there had been a final disposition of it, as appeared from the records of the Superior Court; and when it was before this Court again during the present year atTalbotton, this Court recognized the judgment of the Superior Court, making the injunction against Hargraves perpetual, as a final decree in the cause which is now sought to be reviewed. See Hargraves vs. Lewis, 6 Ga. Rep. 207. The bill originally filed by Lewis against Plargraves .and Wynn, was finally disposed of by the decree of the Superior Court, which perpetually enjoined Plargraves from collecting the thirty-five hundred dollars, the balance due on his judgment, as appears from the records of the Sujserior Court. The complainant, (Hargraves,) whose rights are prejudiced by that decree, now brings his bill of review to reverse it, for error in law, apparent on its face. There stands the decree on the records of the Superior Court, duly enrolled according to our practice, which perpetually restrains Hargraves from the exercise and enjoyment of his legal rights, acquired by his judgment against Wynn. That judgment cannot be set aside on motion or impeached collaterally. I am satisfied, for the reasons already given, that there is error in law, apparent on the face of that record and decree, and that the complainant has pursued the proper, and, in my judgment, the only legitimate remedy to reverse it, by exhibiting his bill of review. It has been insisted that the decree now sought to be reviewed, was founded on a voluntary settlement between Lewis and Hargraves, and the reasons given by the Judge who delivered the judgment of this Court in Hargraves vs. Lewis, (3 Kelly, 169,) is relied on. Perhaps it would be a sufficient answer to this argument to say, that the question of settlement was not made by the record in that case. As I have before stated, the question, and the only question.made for the judgment of this Court in that case was, whether the case between Lewis and Hargraves and Wynn, had been finally disposed of by the judgment or decree of the Superior .Court, as exhibited in *137the record* "What was the matter in dispute between the parties to be settled? It was the balance due on Hargraves’ judgment, over and above the sum of six thousand five hundred dollars, which Lewis admitted to be due, and which he deposited in the Clerk’s office. There was no controversy betweeri the parties as to the principal and lawful interest to be settled. Lewis paid that into the Clerk’s office as being lawfully and justly due Hargraves, so as to enable him to obtain relief against the balance of the judgment, which was the only matter in controversy between them. The entire record is deathly silent as to any settlement of the only matter which was in controversy between the parties, and which the decree of the Court perpetually enjoins.
It is true, the Judge who wrote out the judgment of this Court in Hargraves vs. Lewis, in attempting to account for the very extraordinary decree of the Court as it appeared on the record, does say, it was competent for the parties to settle the case out of Court, and that such an agreement seems to be shadowed forth in the order. That it was entirely competent for the parties to have settled the case out of Court, I do not doubt, but my objection is, that there is no evidence of any such settlement in the record of that case. The question of settlement was not presented by the record for the judgment of the Court. The settlement of a case is the act of the parties — a judgment or decree of the Court is the sentence of the law, and is binding upon parties and privies until reversed. What money was it that Hargraves accepted, from which a settlement is to be inferred, of the balance oí the judgment which was perpetually enjoined? Most clearly the money tendered by Lewis, and about which there was no dispute. The decree of the Court is in the following words — after reciting the parties : “ The Court having sustained the bill, and the party defendant having accepted the money tendered, Ordered, that said bill be sustained, and the injunction made perpetual.”
The argument amounts to this: that inasmuch as Hargraves accepted the principal and lawful interest, admitted by Lewis to be justly due when tendered, and about which there was no dispute, therefore such acceptance shall operate as a settlement of the balance due on the judgment, and Hargraves shall be perpetually enjoined from collecting such balance. In Byrd vs. Odam, (9 Ala. Rep. 755,) it was held, that where a complainant brings money into Court, insisting it is all that is due to the defendant, and the *138Court makes an order that it be paid to the latter, such defendant •will not be estopped, because he received the money so offered, from showing that a larger amount is due to him from such complainant. The Supreme Court of Alabama have undoubtedly established the true and proper rule. That Court would not hold Hargraves had made a final settlement of the entire judgment often thousand dollars, simply because he accepted the sum of six thousand five hundred, admitted by the complainant to be due on the judgment, and tendered to him in payment, as a prerequisite to enable him to obtain relief against the balance of the judgment. That Court would hold, that the acceptance of the money admitted to be due and tendered, would be no evidence of a settlement of the hálame of the judgment, and why should it I The acceptance of the money tendered by the complainant on the part of Hargraves, is evidence of the payment of the judgment, pro tanto, and nothing more. How a final settlement of the balance of the judgment can be legally inferred from such acceptance, so as to authorize th© Court to perpetually enjoin its collection by Hargraves, I must confess is quite beyond my power of comprehension. The complainant in the bill of review is entitled, in my judgment, to have the decree perpetually enjoining the collection of his judgment reviewed and reversed, and I will not look beyond the case made by the record before me as to what may be the rights and equities of the respective parties when the decree shall be opened. It is sufficient for me to sustain the bill of review to know, that there is error in law, apparent on the face ©f the decree sought to be reviewed and reversed, and I am, therefore, of the opinion that the judgment of the Court below, dismissing the complainant’s bill of review, should be reversed.