Harris, J.
The plaintiff, Mordecai, had commenced a suit in the Superior Court of Sumter count, on a note made by Cutts as principal, with Stewart as security, and, at the same time, at law in the same Court, the plaintiff was proceeding to foreclose a mortgage on real property made by Stewart, the security, to further secure the note mentioned, when he thought proper to move, during term time, the discontinuance of both of his suits. After making a motion to that effect, and before [369]*369the Circuit Judge had made any decision thereon, the counsel of Cutts and Stewart alleged their desire to confer with their clients before any final action on the motion made, and it was, accordingly, not pressed by the counsel of Mordecai until the next morning. When called up, the Judge announced that since the motion was made, a bill of injunction had been presented to him by the counsel of Stewart, whereby it was sought to restrain the plaintiff from dismissing his suit, upon allegations of equities, which were cognizable in Chancery, and in which adequate relief could only be given, and that he had sanctioned, temporarily, said injunction. After this sanction the bill was amended by making Cutts a party defendant. A time being fixed to hear the motion then made for the dismissal of the bill and of the suits, they were heard, the Judge refusing to dismiss the bill, and also denying the original motion to dismiss the suits.
A reversal of the rulings of the Judge as stated, is the purpose of the bill of exceptions here.
1. I take it to be a principle universally recognized in both the English and American system of jurisprudence, that whenever any Court of competent jurisdiction has possession of a cause, it will be retained by the Court having possession to the exclusion of all other Courts.
2. The granting of the injunction at the instance of Stewart upon such a bill as was filed in this case was, in my opinion, a palpable violation of the rule stated. To withdraw the matters in controversy at law to a Court of equity, as the sanction of the injunction in this case did, can be justified on principle only by its being made clearly apparent that the defences of the defendants at law could not be made as fully there as in a Court of equity and adequate relief afforded. This involves, necessarily, an examination into the existing jurisdiction of the Superior Court as a Court of law, and the Superior Court as a Court of equity.
The plaintiff elected to prosecute his rights at law. This is a right given by the Code, and beyond the control of the Judge. Previously to this right of election being conferred if the cause of a plaintiff was of an equitable nature, on the [370]*370equity side of the Superior Court, and through the forms and pleadings usual in equity, redress could be had, there was no option; into equity he was compelled to go. This is not so now. He cannot rightfully be controlled under our present system by the will or opinions of the Judge. He may sue at law, and by proper allegations (and which are amendable at his will at all times,) so shape his case as to obtain the same relief or redress as can be had in a Court of equity; the judgment in the case to be moulded and framed as are verdicts and decrees on the equity side of our Superior Court.
This being the undoubted right of a plaintiff in Georgia, it follows that a defendant when sued at law, having an equitable defence, has a right to its assertion at law as fully as that given to a plaintiff. Virtually the Code invests the law side of the Court with concurrent jurisdiction with the equity side.
The innovation made upon our old system is a great one ; it has not taken away any jurisdiction of the equity side of the Superior Court, but it has very largely augmented that of the law side. It appears to me that if the Judges of the Superior- Courts shall carry into operation what I believe to be the legislative will, in good faith, uninfluenced by their predilections for the old usages in which they were educated and to which they have become attached by habit, the result will be the determination of all suits at law on equitable principles. The constitution having conferred on the Superior Courts the authority to issue writs of mandamus, sci. fa., prohibition and all other writs necessary for carrying its powers fully into effect, nothing it would seem is wanting to give efficiency to the law side of this Court in its remedial justice, clothed as it has been with the concurrent jurisdiction aforesaid. If this view of the great change in our system of Jurisprudence be correct — and that it is, I think is beyond the power of any intellect to controvert successfully by sound reasoning — the enquiry then presses on us for solution: What was in the case below to withdraw it from the jurisdiction which had possession of it, and to cause the litigation [371]*371thereafter between the parties to be had in a Court of Equity ?
To the suits at law of Mordecai, all the defences alleged by Stewart, the security, in his bill of injunction, could, I think, beyond the shadow of refutation, have been made fully at law. What were they ? That, in previous transactions between Cutts and Mordecai, Cutts had paid to Mordecai large sums of usurious interest, and that he (Stewart) asked the assistance of a Court of Equity to give him the right to sue for and recover such usurious interest, or to compel the amount of it to be credited by Mordecai on the note in suit.
3. Now the right to sue for and recover back usurious interest paid is, by a special statute of the State, conferred on the debtor who has paid it. I will not stop to discuss the design of this act, evidently originating in considering usury as odious and to be repressed by penalties — or whether what is in the nature of, if not actually a penalty, can be a matter of subrogation, but I will say that surely there can be no equity whatever in subrogating Stewart to the personal privilege given to Cutts to sue for and recover usurious interest paid by Cutts in other and long passed transactions and with which Stewart had not the slightest connexion — especially when, for Quits, his principal, he does not by his bill show that he ever paid a cent.
The mere fact that he is a security, and liable for Cutts to Mordecai, cannot raise an equity in his favor — nor will these facts together with that of the insolvency of Cutts. Actual loss is necessary, and to the extent of such actual (not apprehended) loss only, can a Court of Equity subrogate him as security to the statutory right of Cutts to recover back the usurious interest paid. If right in the principle stated, what other demonstration is needed to prove that Stewart’s bill, as to this matter, furnished no ground whatever for the interference of a Court of Equity.
4. Nor did the discovery sought furnish a proper ground for its interposition — as it is undeniable that as full a discovery can be had noto at law in Georgia, upon interrogatories or an examination of the parties on the witness stand [372]*372as by any answer to a bill for discovery. As little ground, as by the others, is furnished by the allegation in the bill that the mortgage held over the town property of Stewart in Americus clouds his title and prevents its sale at its value. Before there can be an equity in Stewart to have that cloud removed, it must appear plainly that the mortgage debt has been extinguished by payments.
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Harris, J.
The plaintiff, Mordecai, had commenced a suit in the Superior Court of Sumter count, on a note made by Cutts as principal, with Stewart as security, and, at the same time, at law in the same Court, the plaintiff was proceeding to foreclose a mortgage on real property made by Stewart, the security, to further secure the note mentioned, when he thought proper to move, during term time, the discontinuance of both of his suits. After making a motion to that effect, and before [369]*369the Circuit Judge had made any decision thereon, the counsel of Cutts and Stewart alleged their desire to confer with their clients before any final action on the motion made, and it was, accordingly, not pressed by the counsel of Mordecai until the next morning. When called up, the Judge announced that since the motion was made, a bill of injunction had been presented to him by the counsel of Stewart, whereby it was sought to restrain the plaintiff from dismissing his suit, upon allegations of equities, which were cognizable in Chancery, and in which adequate relief could only be given, and that he had sanctioned, temporarily, said injunction. After this sanction the bill was amended by making Cutts a party defendant. A time being fixed to hear the motion then made for the dismissal of the bill and of the suits, they were heard, the Judge refusing to dismiss the bill, and also denying the original motion to dismiss the suits.
A reversal of the rulings of the Judge as stated, is the purpose of the bill of exceptions here.
1. I take it to be a principle universally recognized in both the English and American system of jurisprudence, that whenever any Court of competent jurisdiction has possession of a cause, it will be retained by the Court having possession to the exclusion of all other Courts.
2. The granting of the injunction at the instance of Stewart upon such a bill as was filed in this case was, in my opinion, a palpable violation of the rule stated. To withdraw the matters in controversy at law to a Court of equity, as the sanction of the injunction in this case did, can be justified on principle only by its being made clearly apparent that the defences of the defendants at law could not be made as fully there as in a Court of equity and adequate relief afforded. This involves, necessarily, an examination into the existing jurisdiction of the Superior Court as a Court of law, and the Superior Court as a Court of equity.
The plaintiff elected to prosecute his rights at law. This is a right given by the Code, and beyond the control of the Judge. Previously to this right of election being conferred if the cause of a plaintiff was of an equitable nature, on the [370]*370equity side of the Superior Court, and through the forms and pleadings usual in equity, redress could be had, there was no option; into equity he was compelled to go. This is not so now. He cannot rightfully be controlled under our present system by the will or opinions of the Judge. He may sue at law, and by proper allegations (and which are amendable at his will at all times,) so shape his case as to obtain the same relief or redress as can be had in a Court of equity; the judgment in the case to be moulded and framed as are verdicts and decrees on the equity side of our Superior Court.
This being the undoubted right of a plaintiff in Georgia, it follows that a defendant when sued at law, having an equitable defence, has a right to its assertion at law as fully as that given to a plaintiff. Virtually the Code invests the law side of the Court with concurrent jurisdiction with the equity side.
The innovation made upon our old system is a great one ; it has not taken away any jurisdiction of the equity side of the Superior Court, but it has very largely augmented that of the law side. It appears to me that if the Judges of the Superior- Courts shall carry into operation what I believe to be the legislative will, in good faith, uninfluenced by their predilections for the old usages in which they were educated and to which they have become attached by habit, the result will be the determination of all suits at law on equitable principles. The constitution having conferred on the Superior Courts the authority to issue writs of mandamus, sci. fa., prohibition and all other writs necessary for carrying its powers fully into effect, nothing it would seem is wanting to give efficiency to the law side of this Court in its remedial justice, clothed as it has been with the concurrent jurisdiction aforesaid. If this view of the great change in our system of Jurisprudence be correct — and that it is, I think is beyond the power of any intellect to controvert successfully by sound reasoning — the enquiry then presses on us for solution: What was in the case below to withdraw it from the jurisdiction which had possession of it, and to cause the litigation [371]*371thereafter between the parties to be had in a Court of Equity ?
To the suits at law of Mordecai, all the defences alleged by Stewart, the security, in his bill of injunction, could, I think, beyond the shadow of refutation, have been made fully at law. What were they ? That, in previous transactions between Cutts and Mordecai, Cutts had paid to Mordecai large sums of usurious interest, and that he (Stewart) asked the assistance of a Court of Equity to give him the right to sue for and recover such usurious interest, or to compel the amount of it to be credited by Mordecai on the note in suit.
3. Now the right to sue for and recover back usurious interest paid is, by a special statute of the State, conferred on the debtor who has paid it. I will not stop to discuss the design of this act, evidently originating in considering usury as odious and to be repressed by penalties — or whether what is in the nature of, if not actually a penalty, can be a matter of subrogation, but I will say that surely there can be no equity whatever in subrogating Stewart to the personal privilege given to Cutts to sue for and recover usurious interest paid by Cutts in other and long passed transactions and with which Stewart had not the slightest connexion — especially when, for Quits, his principal, he does not by his bill show that he ever paid a cent.
The mere fact that he is a security, and liable for Cutts to Mordecai, cannot raise an equity in his favor — nor will these facts together with that of the insolvency of Cutts. Actual loss is necessary, and to the extent of such actual (not apprehended) loss only, can a Court of Equity subrogate him as security to the statutory right of Cutts to recover back the usurious interest paid. If right in the principle stated, what other demonstration is needed to prove that Stewart’s bill, as to this matter, furnished no ground whatever for the interference of a Court of Equity.
4. Nor did the discovery sought furnish a proper ground for its interposition — as it is undeniable that as full a discovery can be had noto at law in Georgia, upon interrogatories or an examination of the parties on the witness stand [372]*372as by any answer to a bill for discovery. As little ground, as by the others, is furnished by the allegation in the bill that the mortgage held over the town property of Stewart in Americus clouds his title and prevents its sale at its value. Before there can be an equity in Stewart to have that cloud removed, it must appear plainly that the mortgage debt has been extinguished by payments. Putting together the usurious interest alleged to have been paid by Cutts, and the credit on the note passed upon by this tribunal in June, 1867, combined, they will not extinguish the note held by Mordeeai, and consequently the mortgage given by Stewart remains to satisfy the balance due on the note, and no Court of Equity can treat it as a cloud, and order it, as such, to be surrendered. But admitting, for argument sake only, that the claims of Mordeeai should be reduced, as sought by the bill, the question recurs, why go into a Court of Equity to have this made, when the Court of law in which Mordecai’s suits are pending has ample jurisdiction to afford to Stewart all the relief he is entitled to? Although I have presented the views I entertain pretty fully, I do not feel that I ought to close without illustrating the position maintained by a decision made by this Court, Dec. Term, 1867. See 35th vol. p. 88; the case of Jackson vs. Deese, et al.; the judgment was that of a full bench; the opinion referred to was delivered by Chief Justice Lumpkin. The case was that of an application by petition at law by a partner for a partition of mill property and land; the partnership, by agreement, was limited to the period of five years; it had not expired by its terms; it had not been dissolved by consent; the mill houses had been burned by Sherman’s army; some of the copartners were opposed to a dissolution and sought to compel applicant for partition to come up and contribute to rebuilding the mill houses and carrying out the articles of partnership.
The Judge below refused to consider the application, holding that as the partnership was not dissolved and that as matters of partnership were exclusively of equity cognizance, the matters involved could only be disposed of in that [373]*373Court. This Court reversed the judgment, reinstated the application, and instructed the Judge to appoint commissioners to make partition, by sale of the entire mill property, who should call before them the partners, hear testimony as to the state of the accounts between them as to the partnership property and report the facts collected back to the Court, together with the proceeds of the sale, so that, should objection be made by any one of the partners to the correctness of such report, a jury should be forthwith empanelled, to which the report, and all matters involved in the partnership should be submitted, and that the jury should be instructed by their verdict to assign to each partner such share of the money brought into Court from such sale as he was equitably entitled to; and further, that they should find, upon the facts, that such partnership be entirely dissolved, and that the judgment upon such finding should be so moulded as to cover the whole partnership business.
What more could have been done in a Court of Equity ? That this could not have been done at law before the Code, is the opinion of the profession generally. The parties would have first been compelled to have gone into equity, procured a dissolution of the partnership, had the accounts among themselves scrutinized and adjusted, then a decree for the sale of the property in order to make a partition. But it is not so now. “ And it will require time for the pi'ofession to wake up so as to comprehend the full meaning of the Code, its length, breadth, height and depth.”
A new era in our State jurisprudence began with the operation of the Code. It will be a fatal’ mistake to adhere to the routine and forms in which we have been educated.
I am sensible they will be abandoned with reluctance, but it is to be hoped, as it involves no matter of will on the part of the Bench, that it will conform fully and cheerfully to legislative enactment, especially when within the range of its constitutional powers, as this great change unquestionably is.
■5. That, on the part of the defendants below, there is a strong desire to retain the pending litigation in the county in which it was begun, is evident from the averments of the bill [374]*374of Stewart, and reasons assigned for his prayer to restrain plaintiff from dismissing his suit. They cannot have the slightest right in the judgment we are called on to make; nor are we permitted to consider the fears entertained by plaintiff, arising, as has been alleged by his counsel, from the popularity of the counsel of defendants and that of the gallant soldier, the principal debtor, as also the sympathy felt by his county men for the security, who is an aged and estimable citizen, or the other causes assigned why the plaintiff would now prefer another tribunal and vicinage for the enforcement of his rights. We cannot look to the motives which led to plaintiff’s motion to dismiss. The sole enquiry must be as to his right to discontinue. By section 3399, Irwin’s Code, a plaintiff may dismiss his action in term or vacation. This general right to all suitors is abridged in a few particular cases.
A suit may not be dismissed after a plea of set-off is filed so as to interfere with the plea, without leave of the Court. See section 2856.
TÍie record shows that after the motion was made to dismiss, and during the same day, a plea which the defendants called a set-off, was filed. Had that plea shown on its face the existence of a mutual demand, or, perhaps, an equitable defence, as a right to an equitable set-off in the security, with sufficient certainty, then the plaintiff could not, of right, have dismissed his suits, so as to interfere with that plea, without leave of the Court and upon terms imposed by the Court.
If the plea had been one of set-off of sufficient certainty in its frame, it would, by law, have accomplished what the injunction was sought for, to restrain plaintiff’s right to dismiss. If it was insufficient, surely a bill, whose equity was founded on that plea, cannot accomplish the restraint sought without the violation of that maxim that “ equity follows the law.” If the plea was insufficient, the result is necessarily a judgment that the injunction was improvidently granted.
If the plea had been sufficient, tire injunction was improperly granted. There is no escape from this dilemma, for the plain reason that the Court of law had possession of the cases [375]*375and ample jurisdiction. A majority of this Court concurring, it is ordered that the injunction be dismissed.
Judgment reversed.