[118]*118By the Court. —
Lumpkin, J.
[1.] We cannot sustain the motion to dismiss this writ of error «on account of the non-joinder of Wynn with Hargraves as co-plaintiff. A severance having taken place between these parties in the Court below, from that time each must be considered as litigating separately. And I gladly avail myself of the opportunity thus afforded, to correct, so far as I am concerned, the views expressed by the Court when this case was before us in another form at Talbotton. (6 Ga. Rep. 207.) We there held, that the parties to a bill of review must stand in the same relative position which they occupied towards each other in the original cause, and that one could not be made defendant to a bill of review filed by a co-defendant. I am satisfied that my first impression was wrong as to the Chancery practice in this particular; and in the absence of authority I was misled by analogizing bills of review too strictly to writs of error. It is true that all the parties to the original bill, whose interest would be affected by the reversal of the former decree, must be before the Court in the bill of review. But it does not follow, neither is it true, that they must come into Court in the same character of complainants and defendants. It may be brought by either or any of the parties to the original bill alone, or it may be filed by a person not a party to the original decree, but whose rights are injured by it. Nay, it lies at the instance of the party who obtained the original decree in his favor, if the original decree is prejudicial to him. Story’s Eq. Pl. tit. Bills of Preview. 1 Bland’s Ch. Rep. 122. 5 Mason’s Rep. 303. And so far from there being any impropriety in changing the position of the parties, it is certain that Wynn could not have united with Hargraves in this bill of review, for the obvious reason that he was not aggrieved by the errors complained of. He should have been made a defendant to the bill.
Having thus put myself right on this matter, we will proceed to examine, with all possible brevity, the merits of this case; and passing by all the other points presented in the record, I shall confine myself entirely to the consideration of the main question, namely : whether or not the demurrer to the bill of review sliouldhave been sustained. I hold that it ought, and for the following reasons:
[119]*119[2.] 1st. I£ a decree lias been taken by consent, a bill of review will not lie against it, upon the maxim1, consensus tollit errorem. 2 Smith’s Ch. Pr. 50. Downing vs. Gage, Eq. Ca. Abr. 165. Todder vs. Sansam, 1 Ero. Par. Gas. ed. Toml. 468. Harrison vs. Rumsey, 2 Vesey, 488. Bradish vs. Gee, 1 Arab. 229, Webb vs. Webb, 3 Swanst. 658.
The case in Sioanston is short, and as it bears a striking resemblance to the one at bar, I will quote the whole of it. It was between father and son. The son had formerly exhibited a bill against his father, to have an account of personal estate, and also1 of the prebend of North Grantham, where his father was a trustee for him. At the hearing the son proved his case. The Master of the Rolls, who heard it, meditated an agreement, which produced a consent that the father should convey to the son, and the son should pay the father ¿650 per annum, and release to hi'» father all account of the arrears, and of the personal estate. Both subscribed their consent to the minutes, and thereupon a reconciliation was made, and a blessing asked and given in open Court. And after all this the father brought a bill of review to reverse the decision. The Chancellor immediately dismissed the bill, and would hear no more of it, upon the ground that there can be no error or injustice of which the Courts will take cognizance in a decree by consent — volentinonfit injuria.
Let us now apply the principle thus illustrated to the case under discussion.
In 1830, Felix Lewis borrowed of George Hargraves $3000, at the usurious rate of about 14^- per cent, interest per annum. The debt was renewed from time to time upon the same terms, until it amounted to $10,500, Hargraves sued Wm. L. Wynn, one of the parties to the last note given, and obtained judgment against him for the whole amount of the debt. Lewis, the borrower, filed his bill against Hargraves and Wynn, charging collusion between them, and expressing the fear that if Wynn paid this judgment, he would have recourse over against him for reimbursement. He tendered to Hargraves the original sum loaned, with lawful interest thereon, and upon his refusal to receive it, he deposited the money in the Clerk’s office, and prayed a perpetual injunction against 'the judgment as to the residue. Hargraves answered the bill and admitted the loan, usury, renewals, &e, Wynn failed or refused to answer.
[120]*120At the coming in of the answer, and befóle the^ return day, Hargraves moved to dissolve the injunction, which motion Judge Sturgis then presiding refused. At the same time he ¡massed the following order:
Felix Lewis, \ vs. > Bill for discovery. George Hargraves and Wm. L. Wynn. )
In the above case the sum of six thousand five hundred dollars having been tendered in satisfaction of the judgment in favor of Hargraves and Wynn, and the same sum having been deposited in the hands of the Clerk : It is Ordered, that the same bo paid to the attorneys of George Hargraves, in full payment of said judgment, unless the Court should decide that the complainant is bound to pay an additional sum as interest upon interest.
Subsequently at Chambers, and before the appearance term of the bill, the Judge passed the following order:
Felix Lewis, v vs. > In Equity. George Hargraves and Wm. L. Wynn. )
The attorneys in the above case are.hereby notified, that the settlement heretofore made, will be final and conclusive, as I cannot allow the claim of compound interest, on the ground that Equity only looks to the original loan, and requires interest thereon from its date. All the subsequent agreements by way of renewals, were not legal contracts, and are not cognizable in Equity, Equity only looking back to the original transaction.
At the term of the Court following this order, it being the first term after the filing the bill, the following order was taken and entered on the minutes, and appears there of record:
Felix Lewis, \ vs. > Bill for injunction. George Hargraves and Wm. 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.
Conceding, now, that all the foregoing orders were a nullity, and that the final decree, making the injunction perpetual, on account of its being made at the appearance term, and by the Judge alone, without the intervention of a Jury, I ask, do not the facts which they disclose show, conclusively, a settlement of the case by [121]*121tkeparties?- Such was the judgment of this Court in Hargraves and another vs. Lems, (3 Kelly, 169,) and such is the just, I had almost said inevitable, conclusion from these entries.
Free access — add to your briefcase to read the full text and ask questions with AI
[118]*118By the Court. —
Lumpkin, J.
[1.] We cannot sustain the motion to dismiss this writ of error «on account of the non-joinder of Wynn with Hargraves as co-plaintiff. A severance having taken place between these parties in the Court below, from that time each must be considered as litigating separately. And I gladly avail myself of the opportunity thus afforded, to correct, so far as I am concerned, the views expressed by the Court when this case was before us in another form at Talbotton. (6 Ga. Rep. 207.) We there held, that the parties to a bill of review must stand in the same relative position which they occupied towards each other in the original cause, and that one could not be made defendant to a bill of review filed by a co-defendant. I am satisfied that my first impression was wrong as to the Chancery practice in this particular; and in the absence of authority I was misled by analogizing bills of review too strictly to writs of error. It is true that all the parties to the original bill, whose interest would be affected by the reversal of the former decree, must be before the Court in the bill of review. But it does not follow, neither is it true, that they must come into Court in the same character of complainants and defendants. It may be brought by either or any of the parties to the original bill alone, or it may be filed by a person not a party to the original decree, but whose rights are injured by it. Nay, it lies at the instance of the party who obtained the original decree in his favor, if the original decree is prejudicial to him. Story’s Eq. Pl. tit. Bills of Preview. 1 Bland’s Ch. Rep. 122. 5 Mason’s Rep. 303. And so far from there being any impropriety in changing the position of the parties, it is certain that Wynn could not have united with Hargraves in this bill of review, for the obvious reason that he was not aggrieved by the errors complained of. He should have been made a defendant to the bill.
Having thus put myself right on this matter, we will proceed to examine, with all possible brevity, the merits of this case; and passing by all the other points presented in the record, I shall confine myself entirely to the consideration of the main question, namely : whether or not the demurrer to the bill of review sliouldhave been sustained. I hold that it ought, and for the following reasons:
[119]*119[2.] 1st. I£ a decree lias been taken by consent, a bill of review will not lie against it, upon the maxim1, consensus tollit errorem. 2 Smith’s Ch. Pr. 50. Downing vs. Gage, Eq. Ca. Abr. 165. Todder vs. Sansam, 1 Ero. Par. Gas. ed. Toml. 468. Harrison vs. Rumsey, 2 Vesey, 488. Bradish vs. Gee, 1 Arab. 229, Webb vs. Webb, 3 Swanst. 658.
The case in Sioanston is short, and as it bears a striking resemblance to the one at bar, I will quote the whole of it. It was between father and son. The son had formerly exhibited a bill against his father, to have an account of personal estate, and also1 of the prebend of North Grantham, where his father was a trustee for him. At the hearing the son proved his case. The Master of the Rolls, who heard it, meditated an agreement, which produced a consent that the father should convey to the son, and the son should pay the father ¿650 per annum, and release to hi'» father all account of the arrears, and of the personal estate. Both subscribed their consent to the minutes, and thereupon a reconciliation was made, and a blessing asked and given in open Court. And after all this the father brought a bill of review to reverse the decision. The Chancellor immediately dismissed the bill, and would hear no more of it, upon the ground that there can be no error or injustice of which the Courts will take cognizance in a decree by consent — volentinonfit injuria.
Let us now apply the principle thus illustrated to the case under discussion.
In 1830, Felix Lewis borrowed of George Hargraves $3000, at the usurious rate of about 14^- per cent, interest per annum. The debt was renewed from time to time upon the same terms, until it amounted to $10,500, Hargraves sued Wm. L. Wynn, one of the parties to the last note given, and obtained judgment against him for the whole amount of the debt. Lewis, the borrower, filed his bill against Hargraves and Wynn, charging collusion between them, and expressing the fear that if Wynn paid this judgment, he would have recourse over against him for reimbursement. He tendered to Hargraves the original sum loaned, with lawful interest thereon, and upon his refusal to receive it, he deposited the money in the Clerk’s office, and prayed a perpetual injunction against 'the judgment as to the residue. Hargraves answered the bill and admitted the loan, usury, renewals, &e, Wynn failed or refused to answer.
[120]*120At the coming in of the answer, and befóle the^ return day, Hargraves moved to dissolve the injunction, which motion Judge Sturgis then presiding refused. At the same time he ¡massed the following order:
Felix Lewis, \ vs. > Bill for discovery. George Hargraves and Wm. L. Wynn. )
In the above case the sum of six thousand five hundred dollars having been tendered in satisfaction of the judgment in favor of Hargraves and Wynn, and the same sum having been deposited in the hands of the Clerk : It is Ordered, that the same bo paid to the attorneys of George Hargraves, in full payment of said judgment, unless the Court should decide that the complainant is bound to pay an additional sum as interest upon interest.
Subsequently at Chambers, and before the appearance term of the bill, the Judge passed the following order:
Felix Lewis, v vs. > In Equity. George Hargraves and Wm. L. Wynn. )
The attorneys in the above case are.hereby notified, that the settlement heretofore made, will be final and conclusive, as I cannot allow the claim of compound interest, on the ground that Equity only looks to the original loan, and requires interest thereon from its date. All the subsequent agreements by way of renewals, were not legal contracts, and are not cognizable in Equity, Equity only looking back to the original transaction.
At the term of the Court following this order, it being the first term after the filing the bill, the following order was taken and entered on the minutes, and appears there of record:
Felix Lewis, \ vs. > Bill for injunction. George Hargraves and Wm. 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.
Conceding, now, that all the foregoing orders were a nullity, and that the final decree, making the injunction perpetual, on account of its being made at the appearance term, and by the Judge alone, without the intervention of a Jury, I ask, do not the facts which they disclose show, conclusively, a settlement of the case by [121]*121tkeparties?- Such was the judgment of this Court in Hargraves and another vs. Lems, (3 Kelly, 169,) and such is the just, I had almost said inevitable, conclusion from these entries. And it will not do to say, that this testimony only goes to prove that Hargraves received the $6,500, or so much of his claim admitted to be due, without prejudice as to the balance. The evidence is, that the $6,500 was tendered in satisfaction of his judgment against Wynn ; that it was ordered by the Court to be paid to his counsel, in full discharge of said judgment, and that Hargraves accepted the amount thus tendered. Not that he took it as of “right, or in invitum, as against his will and under duress of law, but willingly and of his own accord, upon consultation with his attorneys, under the opinion of the Judge as to what was legally and equitably due him.
Such being the case, he cannot disturb the settlement, and if errors were committed, they were cured by the voluntary adjustment of the controversy; and the order making the injunction perpetual was wholly nugatory — it was an act of supererogation. The judgment against Wynn being satisfied, the execution to enforce it was at an end, and it would be idle to sanction a bill of review to rectify this decree. For,
[3.] 2dly. A bill of review will not be entertained where the complainant cannot be benefited by the reversal or modification of the former decree. Webb vs. Pell, 3 Paige’s Rep. 368. In this case Chancellor Walworth expressed serious doubts, whether the decree sought to be reviewed could be sustained in its present form; and yet he refused to re-open it, because, among other reasons, no good could result to the party from a re-hearing. Now, if the construction be correct which we have put upon the testimony transcribed from the minutes of the Court, to wit: that it demonstrates that the litigation was terminated by the voluntary agreement of the parties, what would it profit the complainant to obtain a reversal of the order perpetually enjoining his judgment against Wynn, the judgment itself being satisfied? It would be a contest about “goat’s wool.” Error in matter of form only, although apparent on the face of a decree, seems hot to have been considered, says Judge Story, as a sufficient ground for reversing a decree. • Eq. PI. §411.
3dly. It is a well settled doctrine, that a bill of' review will not lie where the original bill contains no equity. Todd vs. Lackey, [122]*1221 Ditt. 271. In other words, Courts will look through the original case, to see whether or not it is proper to interfere. If, in the present case, the application had proceeded from Lewis, and upon examination of the record, it should be found there was no equity in his first bill, a bill of review would not be granted him. Will not the Courts, in meting out equal justice, look to the record to see what equity Mr. Hargraves has to entitle him to the aid of a Court of conscience?
Even Courts of Law, notwithstanding a misdirection, will not grant a new trial against justice and honesty; and especially if it ought to produce the same result. And it is a mistake, wo apprehend, to suppose thatCourts, either of Law or of Equity, have no discretion when thus appealed to. An application for anew trial at Law, or a bill of review in Equity, is always addressed to the sound judicial discretion of the Court; and it will exercise that discretion in such a manner as will best answer the ends of justice. And it will not do to hold that no matter in which forum he is presiding, he is to examine merely whether or not error has been committed. And I hold it to be an axiom, that a cause will not be°directed to be re-tried on amere technical objection.
In Coffee vs. Rowlands, (2 Meeson and Welsby, 149,) Par let?, Baron, delivering the judgment of the Court, says, “ it is perfectly settled, that where the contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by the Common or Statute Law, no Court will lend its assistance to give it effect.”
The leading case on this subject is that of the Duchess of Mazarine, (2 Salk. R. 646,) where the verdict was admitted to be against law, yet the Court there held that, as the justice and conscience of the case were clearly with the verdict, it would not interpose. So in Alsop vs. Magill, (4 Day, 42,) the Supreme Court of Connecticut say, “whether the charge of the Court was perfectly correct in point of law, it is unnecessary to determine. Justice is done, and a new trial ought not to be granted.” See also 2 Term Rep. 4. 1 Bos. & Pul. 338, in notis. 6 Taunt. 336. 5 Mass. R. 1. 7 Greenlf, 442. 2 Pick. 310. Indeed Courts hold, uniformly, but one language upon this subject. Such have been the constant adjudications of this tribunal; that is, that we would look through the record to satisfy ourselves what direction to give to the cause; and that we would never remand it for a [123]*123re-hearing, where complete and substantial justice has been done, or where we are satisfied that, on a second trial, the same verdict must be given, although there might have been some misdirection by the Judge at the trial, as to the law. Will Courts of Equity be .less scrupulous than Courts of Law, in granting new trials ?
' It does not require much penetration to see what the ends of justice require in the present case. It is admitted by the complainant, Hargraves, in his sworn answer to the bill filed by Lewis, that he has long since received every dollar of his original loan, with lawful interest thereon. And what is it he seeks at our hands 1 He complains that, by an irregular and illegal decree of the Circuit Court,he has been restrained from collecting some $4,000 of usury, besides a large amount of accruing interest; and he prays the interposition of this Court to unchain his judgment, that he may enforce the payment of this unconscientious demand ! To my mind this is a most extraordinary application ! And it would be still more strange, were it to receive the countenance of a Court of Chancery. I care not what errors are apparent on the record; for myself I do not feel at liberty to listen to such a petition, especially when every order and decision of the Judge who presided in the original cause, as to the terms upon which this usurious transaction should be settled, meets my most unqualified approbation.
Can a case be' found where a party has obtained the aid of a Court of Chancery to compel the payment of usury 1 On the contrary, is not the principle to be found scattered broad-cast through all the elementary works and reported cases, that Equity will refuse any assistance to the usurious lender seeking to coerce compliance from the debtor ? I had thought that if there was anything certain in jurisprudence, it was that Equity would not assist a wrong-doer, who attempts to make the Court the means of carrying into effect a transaction manifestly wrong and illegal; one condemned by the wisest statesmen and most profound jurists in every enlightened nation, ancient and modern, and in the bold language of the eloquent counsel, by the voice of Deity himself.
The loan of money, says Chancellor Kent, creates the interesting relation of debtor and creditor, which has, in all ages of the world, produced fearful consequences; and to preserve the laws of justice in that relation has, hitherto, required the utmost sagacity on the part of Government, and the greatest wisdom and [124]*124firmness in the administration of justice. He adds, “ I consider the laws against usury to be a check to hard-hearted avarice, and a protection thrown around the necessitous.” He further declared that he should apprehend dangerous effects upon the public morals, if creditors were at liberty to demand what rate of interest they pleased, without being under any admonition of human laws. Accordingly, he decreed that if the lender of money at usury seeks, to enforce any of his securities, and the borrower sets up the defence of usury, which is proved, the securities will be declared void, and be ordered to be delivered up and cancelled. 3 John. Ch. R. 399. 5 lb. 135. ’“And nothing is clearer to my mind,” said that very able lawyer and statesman, Lord Redesdale, “ than that the statutes against usury ought to be strictly enforced.”
The Court of Appeals in Kentucky held, that if a mortgagee file a bill to foreclose a mortgage to secure a usurious loan, the bill will be dismissed whenever the fact is made to appear. Richardson vs. Brown, 3 Bibb’s Rep. 207.
And why should we relax the rules which discountenance this practice, when our people are just beginning to reap the rich benefits resulting from its supjDression ? We should rather uphold with a steady hand, in all its length and breadth, the policy of our laws against usury. It is imparting a new spring to the agriculture, manufactures and internal improvements of our State. It is contributing, among other things, to rescue our citizens from the necessity of emigrating, by finding profitable employment at home. It is covering our waste places with plenty and prosperity. It is furnishing our mechanics with the means of maintaining their families, and educating their children; and soon, if persevered in, it will intersect every section of the State with a railroad, and cause the machinery of the cotton, as well as every other species of factory, to clatter upon every water-fall and in every neighborhood in Georgia.
We are constrained, therefore, by the highest public considerations, to t-urn a deaf ear to this complainant, however venerable for age, intelligence and private worth.
Nor does the fact that his contract has been reduced to judgment, chango the principle. Having this advantage at law, he had a right to use it. But finding his hands tied, when he invokes our aid tq turn his judgment loose, confessedly for usury, and [125]*125nothing else, the same rule aj^plies that appertained to the original contract. And such was the opinion of the Court in Nisbet vs. Walker, 4 Ga. Rep. 221. "We there decided that if a judgjnent creditor, upon a usurious contract, comes into a Court of Equity, seeking to have his debt satisfied out of money arising from the sale of the defendant’s property, upon which he had a lien at law, that the judgment should be displaced for the usury, and stand only against the fund for the principal and interest due on the original loan. We propose only to apply the same rule to the present case. Here the record discloses that the creditor has secured every dollar of the principal, with legal interest due on the original loan ; and believing that he has got all that he is entitled to in equity, we refuse our assistance, notwithstanding he is a judgment creditor.
[4.] In the discussion of this question, I have yielded throughout, ex gratia, that the Judge had no right to pass the order perpetually enjoining the execution against Wynn, without the intervention of a Jury. I must, however, in justice to myself, “ define my position” upon this subject. And it is this : that the Judge and Jury occupy precisely the same relative position in Equity causes that they do in cases at Common Law. Their respective province and powers are in no wise different. Whatever the Judge could do in one forum, when the acts are admitted, he can do in the other. And the idea that the Judge has the right to mingle with the Jury in their deliberations in their room upon the merits# and they, in their turn, consult and pronounce with him upon the law, in Equity causes, I hold to be a fallacy, unwarranted by anything in the Constitution and Laws of the State.
The 16th section of the Judiciary Act of 1792, vests the Superior Court with Equity powers in certain cases, until the case is set down for trial, which shall then be submitted, with the evidence, to a special Jury, who shall give their verdict on the same. Wath. Digest, 480. The Act of 1792 was repealed by the Act of 1797, which, however, contained the same provision, and in the very same words. Watk. Digest, 692. The Judiciary Act of 1799, now in force, repealed the Act of 1797, from the 1st to the 67th clause, inclusive. The 53d section of the Act of 1799 declares, that the Superior Courts shall exercise the powers of a Court of Equity in all cases where a Common Law remedy is not adequate, &c; and the proceedings, in all such cases, shall [126]*126be by bill and such other proceedings as are usual in such cases, until the setting down of the cause for trial. At this stage, according to the provisions of the two previous Acts of 1792 and 1797, the proceedings usual in Chancery were modified, and instead of an investigation by the Chancellor, or a Master in Chancery, or by referring the facts to a Court of Law, the trial of the merits upon the testimony was to be had by a Jury. And this was the trial by Jury, heretofore used in Equity causes, which was adopted by the 5th section of the 4th article of the Constitution of 1798.
And where, I respectfully repeat, is the pretext for maintaining that the Law powers of the Court are restricted or curtailed, or those of the Jury enlarged in Equity, any more than in appeal or Common Law cases? There is no foundation for this hypothesis, unless it be based upon the Constitution of 1777, which made the Jury the judges of the Lato, as well as of the fact, in all cases, civil and criminal.
[5.] We have refrained intentionally from expressing any opinion as to the time within which hills of review should be brought. The doctrine of all the Courts in England and in this country is, that a bill of review for errors apparent on the face of the record, will not lie after the time when a writ of error could be brought. Courts of Equity govern themselves, in this particular, by the analogy of the Common Law in regard to writs of error. Hence, in England, where writs of error must he brought in twenty years after a judgment, unless in certain cases of disabilities, the like limitation is adopted in Courts of Equity as to bills of review for errors apparent on the face of decrees. For the same reason, in the Courts of the United States, bills of review for errors apparent on the face of decrees, are limited to five years — that being the limitation of writs of error upon judgments at Law.
In Georgia, before the amendment of the Constitution, calling this Court into being, we had no writs of error to which to analogise bills of review; and now writs of error must be brought within thirty days after the adjournment of the Court, at which the cause was tried. Is not this a case requiring Legislative interference ?
[6.] There is, in connection with this point, another matter worthy of consideration : Under our present system, will a bill of review lie for errors apparent upon the record ? See HasJcell and [127]*127others vs. Raoul and wife, 1 McCord’s Ch. Rep. 22. Perkins vs. Lang, 1b.in note. Manigault vs. Deas, 1 Bailey’s Eq. 283.
The view we have taken of this case being in accordance with the ruling of the Circuit Court, we need only-add that the judgment is affirmed.