1. Under the facts of this case, as they appear in the record, we do not think the order of the Court refusing to open the judgment for more than one-third of its nominal amount, was such an error as it is the duty of this Court to correct.
The parties were at issue before hith on matters of fact as well as of law, and as to questions of fact, his .judgment stands upon the footing of the verdict of a jury. The question is, not “ is the verdict required by the evidence,” but “ is it so contrary to the evidence as to be illegal ?” We do not think it is without evidence, or strongly and decidedly against the weight of evidence. Leaving out all the other evidence in the case,-the'written receipt of the plaintiff’s attorney, with its addenda, is enough to support the judgment. The sheriff carried the money and check to him, and, as appears by the receipt, he received the whole as Confederate money, but objected to counting the money at more than two-thirds of its nominal amount. This would seem to be the effect of the receipt by him, as he made it. If he did not accept it as payment in some amount, why did he take it at all ? His written objection that he would contend it was only good for two-thirds, is strong evidence that it was taken for at least that. It is true, by parol statements, the witness. *354modifies and explains the meaning of this receipt and notice herej but we d'o not feel satisfied that the explanation was such as to justify us in setting aside the judgment of the Court on this point.
2. Without question, when, in a motion before a Court a question of fact arises, the Judge may, of his own motion, order a j ury trial. By our practice it is also true that either or both of the parties may, in such cases, demand a jury trial. Here the parties, by mutual consent, waived this right as to the several issues, and agreed to submit the whole case to the Judge. The Judge accepted the duty cast upon him, (which he was not bound to do,) and entered upon the investigation, hearing all the evidence on all the points which the parties saw fit to introduce.
3. It was not fair to the movant, who had waived his right to a jury trial, for the Court to find against him on one of the issues of fact and refer the other to a jury. Perhaps had ihe movant known his case was to go to a jury on this point, he would not have waived it as to the other, and we are of the opinion that the Court ought not to have directed a jury trial under the circumstances.
The judgment of the Court was that the evidence showed .that a part of the consideration of the j udgment was slaves, but that he could not from the evidence determine how large ;a part of the consideration was' of that character. Was hot the failure of the defendant’s evidence to establish affirm.atively the amount of the consideration, based on slaves, a .good reason to deny his motion? Here was a judgment. It lay upon the defendant to show the defect in it. In the judgment of'the Court his evidence shows that there is a portion of the consideration of this- character, but not how much. We are of opinion that the burden of proof was on the defendant, and that he failed, according to the judgment of the Court, to make out his case, and the Court ought to have found this issue against him for this reason.
But there was no evidence on the issue, about the consideration, but the record. That was matter for the Court. Had the case gone to a jury, the effect and construction of the *355record was with the Court,, and, in fact, the whole matter turned on that construction. The Court ought to have construed it and given Jiis judgment accordingly.
In our judgment this record did not show that the consideration of the judgment was slaves, but the contrary. Mrs. Jones had a claim against the estate of her deceased husband in the nature of a trust; so had the defendant. It was agreed that if she would withdraw her proceedings and permit the property of the deceased husband to be sold, the defendant would give her certain advantages and rights in the property he might purchase at the sale. He made at the sale a purchase of certain slaves, and then'refused to comply with his contract, and she filed her bill in equity against him, setting up the facts and praying, relief. The decree was for so much money, and the very fact that the decree gives the judgment a lien on the negroes, shows that the negroes were only considered as collateral to her claim against him. While, therefore, we.see no error in the Court in refusing to open the judgment for more than one-third, we think the Court ought to have directed the judgment to proceed for the one-third left unpaid, and as the whole evidence is matter of record, we so instruct the Court. The parties have had their day in Court. They have introduced their evidence pro and con, and the Court, by its judgment that the evidence did not show ho w'much of the consideration was slaves, has, in-effect, decided the execution to be one over which the Court had jurisdiction. The error of the Court is in ordering the jury. The order ought to be that the ft. fa. proceed for the one-third still unphid. '
Judgment reversed.