concurring:
Until the adoption of the constitution of 1861, I think a Court of Equity is not, in express terms, mentioned in our fundamental law.
1. “ The constitution does not provide for the exercise of any equity jurisdiction whatever. * * The constitution declares that the judicial powers of this State shall be vested in a Superior Court and in such inferior jurisdictions as the legislature shall, from time to time, ordain and establish. * * * The term ‘judicial powers,’ embraces all cases, criminal and civil, at common law and in equity, and the legislature, in regulating them, were authorized to make any arrangement of them not repugnant to the constitution. In the exercise of this power they vested jurisdiction in equity cases in the Superior Courts. * * The equity jurisdiction was created by the act of 1799. (Cobb’s N. D. 467; sec. 53 of the Judiciary Act.) It was a special grant, and gave an exclusive jurisdiction. It authorized the Superior Courts to ‘exercise the powers of a Court of Equity’ by such proceedings as were ‘usual in such cases.’ ” Gilbert vs. Thomas, 3 Ga. R., 579 and 580. In Beall vs. ex. of Fox, 4 Ga. R., 404, it is decided that “ the Superior Courts in this State are empowered to exercise general equity jurisdiction, in all cases where a common law remedy is not adequate.” In delivering the opinion of the Court, p. 423 and 424, Judge Warner says, “ When we take into consideration the contemporaneous construction which has been given to it (the 53d section of the Judiciary Act,) in favor of such general equity jurisdiction, in all cases where common law remedy was not adequate by our Courts, for a period of nearly fifty years, without any attempt, on the part of the legislature, to restrict its exercise, we can not now consider it as an open question.” How, the Revised Code, section 3045, says, “ Generally, equity jurisprudence embraces the same matters of jurisdiction and modes *376of remedy in Georgia as was allowed and practiced in' England.” There need be no doubt then, as to what equity jurisdiction in Georgia now is, except in ascertaining what was allowed and practiced by the Courts of Chancery in England. In 1820, (Cobb’s Dig. 463 and 464,) the legislature passed an act declaratory of the meaning of this 53d section, which section specifically enumerates as grounds of equity jurisdiction : First, To compel parties to discover’, on oath, all points necessary to the investigation of truth. ‘ Second, To discover transactions between copartners and co-executors. Third, To compel distribution of intestate estates, and the payment of legacies. Fourth, To discover fraudulent transactions for the benefit of creditors. After reciting the whole section, and also reciting that, by construction, equity had drawn to itself, exclusively, all cognizance of the cases enumerated even when they might depend on a,Hunde proof “ to the manifest embarrassment of justice in many cases, to the injury of the good citizens of this State; for remedy whereof, Beit enacted that from and after the passage of this act, whenever in any of the cases enumerated in the before recited section, a plaintiff or complainant shall conceive that he, she, or they can establish his, her, or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for every such plaintiff or complainant to institute his, her, or their action upon the common law side of the Court, and shall not be held to proceed with the forms of equity; any law or usage to the contrary notwithstanding.” Section 2d provided for the filing of a bill of discovery,, after the commencement of the common law action in aid or defence thereof in all cases where it might be necessary. Let it be borne in mind that it was by virtue of a construction of this 53d section that the Court of Equity assumed general equity powers; and then the act of 1820 says that in any of the cases enumerated in that section the plaintiff or complainant may, if he shall conceive that he can establish his claim without resorting to the conscience of the defendant, institute 1 his action at law,, and shall not be held to proceed with the forms of equity; and we have a remedy at law for any equitable cause of action *377whatever, provided the plaintiff conceives he can prove his case without resort to the conscience of the defendant.
If, after the institution of his action at law, he wished to have the testimony of his adversary in aid or defence of his common law action, he could file a bill for the discovery of testimony. The act of 1847, Cobb’s Dig. 465, authorized parties to compel discoveries at common law. If the act of 1820 had received that liberality of construction to give Courts of law jurisdiction of equitable causes of action, which the 53d section received, in order to give the Courts of Equity jurisdiction of causes of a general nature, there never would have been much necessity for going into a Court of Equity at all. We would not have witnessed the anomaly of a Judge of the Superior Court permitting a judgment to go against a party to-day, and to-morrow as chancellor enjoining it, and after this, submit the case to be tried by another jury, selected in the same manner as the previous one presided over by the same Judge; and in direct violation of the act of 1820, hold the party “ to proceed with the forms of equity.” By reading the opinion in the case of the Justices, etc., vs. Hemphill, 9 Ga. Rep., 65, it will be seen how reluctant our Courts then were to give effect to this act. In Cook vs. Walker, 15 Ga. Rep., 473, Judge Lumpkin, after giving a very interesting history of equity jurisdiction in Georgia, says: “The act of 1820 complains that equity had drawn to itself exclusive jurisdiction of the five sorts of cases therein mentioned; and confers concurrent common law jurisdiction.”
2. Thus stood the law at the adoption of the Code. By sec. 3026 of the Revised Code, “ Equity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong, or relieving for injuries done. Sec. 3027. Ho suitor, however, is compelled to appear on the equity side of the Court; but he may institute his proceeding for an equitable cause of action upon the common law side of the Court at his option, and the Court may allow the jury to *378find a verdict, and a judgment be rendered thereon, so moulded and framed to give equitable relief in the case, as verdicts and decrees are framed in equity proceedings.” To my mind this is clear, and gives a party a right, in any “ equitable cause of action,” to proceed in equity or common law, “at his option.”
3. It does not take away, or at all interfere with the equity jurisdiction, as specified in sec. 3045, but extends the jurisdiction of a court of law so as to embrace equitable, causes of action; in other words to permit the party moving to elect whether he will “proceed with the forms of equity” or not.
4. Once a party elects his forum he will be bound by such election, for where law and equity have concurrent jurisdiction, the Court first taking will retain it unless a good reason can be given for the interference of equity, Rev. Code, 3041. It follows, from what has been said, that a party may institute his proceeding at common law for any cause of action, whether legal or equitable, and have such relief as the facts of his case may show him to be entitled; and on the other hand a defendant may set up, to any proceeding instituted against him at law, any ground of defence which he may have, whether legal or equitable, to resist a recovery by the plaintiff. If he have a set-off of an equitable nature, or any other intervening equity, not reached by the principle of the common law, he may set this up as a defence to a common law proceeding and have full, complete and adequate relief, in relation to his claim, of whatever character it may be.
I am aware that what is here said does not seem to harmonize with the decision in the case of Dudley vs. Love, decided at December term, 1866. In that case no question was made as to the powers of a Court of Equity, and the Court admitted that an additional allegation would have entitled the party to an injunction. The question of jurisdiction was not raised in that case; the question there decided, was as to diligence, etc., nothing more. Hence, what is said there should be understood in reference to the question *379as there presented for adjudication. The same may be said of other cases decided by this Court.
5. In the case at bar, Mordecai commenced his proceedings at law; he had a right to do so; and having gone into that forum, the defendant has no right to oust that tribunal of jurisdiction over Mordeeai’s ease, in order that Stewart may have his equitable set-off adjudicated with it. Stewart has an equitable cause of action, and in relation to that he can select his forum. He may, as he has done, proceed in a Court of Equity, and have his rights adjudicated ; or he may, as a defense to the case of Mordecai against him, set up this equitable cause of action, and have the merits of the whole controversy on both sides passed upon in this case, at his option. He shows no sufficient reason for taking Mordecai’s case into equity; but he does show a good case for equity in his own favor against Mordecai. Such being the case, he was not entitled to an injunction to restrain Mordecai from proceeding with his common law action, nor was Mordecai entitled to have Stewart’s bill dismissed, because it states a good equitable cause of action, and if true entitles Stewart to a decree against Mordecai. Stewart has a right to proceed to trial on his bill, and Mordecai, being relieved of the injunction, may proceed with his common law proceeding. It may be that Stewart may dismiss his bill and set up the matters therein alleged as a defense to Mordecai’s suit.
6. I have no doubt that if Cutts assigned to Stewart this claim for usury before Mordecai sued Stewart, that it would be good as a set-off at law, without reference to the sections of the Code already cited. By sec. 2218, Rev. Code, “All choses in action arising on contract may be assigned so as to vest the title in the assignee.” Chitty defines choses in action to be “rights to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action.” 1 Ch. Pr. 99. A right to recover a debt, or damages for breach of contract, may be assigned so as to vest the title in the assignee; and the person in whom is the title or legal interest has a right to sue for the recovery thereof. 1 Ch. Pl. *380p. 2. This claim of Stewart by assignment from Cutts was a legal claim, the subject of set-off according to the principles of the common law, and majr be set-off against Mordecai’s claim on Stewart. Nor have I any doubt that Cutts, under the circumstances alleged in the bill, could intervene for the protection of Stewart, and insist on having the amount of this usurious interest applied towards the extinction of the liability of this accommodation maker, who was really a surety; provided, of course, that the claim had not been so assigned as to make it a valid legal set-off.
7. Stewart filed a plea of set-off to Mordecai’s action against him; this placed it out of the plaintiff’s power to dismiss his action so as to interfere with that plea, unless by leave of the Court, on sufficient cause shown, and on terms prescribed by the Court. Rev. Code, sec. 2856. Therefore the plaintiff had no right to dismiss his action of his own mere motion but must apply to the Court for that purpose, if he wish to dismiss, and the Court will doubtless prescribe such terms as will meet the justice of the case, and protect the rights of both parties.
The conclusion at which I arrive is that the Court erred in not dissolving the injunction, and his judgment holding it up should be reversed; that Stewart may continue to press his bill to trial if he wish to do so, or he may dismiss that proceeding and set up his equitable set-off against the plaintiff’s demand at law; and that Mordecai can not dismiss his case so as to interfere with Stewart’s plea of set-off unless by leave of the Court on sufficient cause shown and on terms prescribed by the Court, whose duty it is to see that justice is done to both sides.
Judgment reversed.