William Butler et al., plaintiffs in error, vs. Sophronia Weathers, defendant in error; T. D. Flipper, plaintiff in error, vs. James J. Reid et al., defendants in error; J. C. Thornton & Co., for use of, etc., plaintiffs in error, vs. William Faulk et al., defendants in error

McCay. J.

These cases all turn on the Act of 1868, known. as the Relief Law. That Act provides that the jury, under certain circumstances, may reduce the plaintiff’s claims according to the “equities” between the parties. We held at the last term of this Court, in the case of Cutts & Johnson vs. Hardee, 38th Georgia Reports, 381, that this word “ equity,” as used in this statute, did not mean whim of the jury, nor mere mercy, but that “fair and honest duty which each owes to the other, growing out of the contract, or arising between them since.” In each of the cases at the head of this opinion, there was no pretense of any equity, except that “at the date of the contract the defendant below was worth a certain amount, and that at the trial he was worth much less.” It did not appear that this was in any way the “fault” of the plaintiff, or that, he was in any, even the most distant, way connected with this change in the circumstances of the defendant. We do not think this is any “equity,” and we, therefore reverse the two cases of Thornton & Co. vs. Faulk et al., and Flipper vs. Reid et al., where the jury so found, and affirm the case of Butler et al. vs. Weathers, where they have found differently.

Warner, J.,

concurring.

I concur in the judgment of the Court affirming the judgment of the Court below in the case of Butler & Howell vs. Weathers, and in reversing the judgment of the Court below in the two cases of Flipper vs. Reid and McFarland, and Thornton & Co. vs. Solomon & Faulk. These several cases involve the construction of the first section of the Relief Law of 1868. That law, in my judgment, as applicable to all contracts made prior to the first day of June, 1865, is unconstitutional and void, for the reasons expressed in my dissenting opinion in the case of Cutts & Johnson vs. Hardee, 38th Ga. Rep., 381.

In the case of Butler & Howell vs. Weathers, the defendants proved by uncontradicted evidence, on the trial thereof, that they had lost property, during the war to the amount of $4,500 00 each, making $9,000 00, upon the faith of which the credit was given to them. The jury found for the plaintiff the full amount of the note. The defendants in the Court below moved for a new trial on the ground that the verdict was contrary to law and the evidence, and upon the further ground, that the jury had disregarded the provisions of the Relief Act. The Court overruled the motion, which is assigned as error here. In the case of Thornton vs. Solomon & Faulk, the defendants plead and proved on the trial their respective losses by the war, as provided in the Relief Act, and the jury, by their verdict, reduced the amount of the plaintiff’s debt, whereupon the plaintiff moved tor a new trial, which the Court below refused, which is now assigned for error here. In the case of Flipper vs. Reid & McFarland, the same question was involved as in Thornton vs. Solomon & Faulk, the jury having reduced the plaintiff’s debt on account of losses proved to have been sustained by the defendants, as provided by the Relief Act of 1868.

This Act of the Legislature expressly declares,,,that in all suits upon contracts made prior to the first day of June, 1865, it shall and may be lawful for the parties, in all such cases, to give in evidence to the jury, amongst other things, the destruction or loss of property upon the faith of which the credit was given, and how and in what manner the property was destroyed or lost, or by whose default, and in all such cases the jury shall have power to reduce the amount of the debt or debts sued for, according to the equities of each case, and render such verdicts as to them shall appear just and equitable. Such is the clearly expressed will of the Legis lature, and if I believed with the majority of the Court, as they held and decided in the case of Cutts & Johnson vs. Hardee, that this Act of the Legislature is a constitutional and valid, law, then it would be my sworn duty, as a judicial officer, to enforce it in accordance with the true intent and meaning thereof. I would not nullify and render nugatory the plain and unambiguous provisions of a constitutional law prescribed by the supreme power of the State. What that Act declares shall be lawful evidence to be submitted to the jury, I would recognize as lawful evidence, and see to it that the juries should not disregard it in rendering their verdicts. If I believed that Act to be a constitutional and valid law, I would reverse the judgment of the Court below in the case of Butler & Howell vs. Weathers, as being contrary to the evidence in that case; and in the case of Thornton vs. Solomon & Faulk, and in the case of Flipper vs. Reid & McFarland, I would affirm the judgments in both of those eases as being in accordance with the evidence declared to be lawful evidence by the plain provisions of that Act.

But, believing as I do, that the Act of 1868 is unconstitutional and void, and that the evidence authorized by it as a defense to suits upon contracts made prior to Juno, 1865, is not legal evidence for the purpose of reducing the amount and value of such contracts, I concur with the majority of the Court in affirming the judgment of the Court below in Butler & Howell vs. Weathers, and concur with them in the reversal of the judgments of the Court below in both the other cases.

Brown, C. J.,

concurring.

While I hold that the first section of the Relief Act of 1868 is constitutional, and that the evidence as therein specified may go to the jury, I do not hold that proof of any single fact therein enumerated will authorize the jury to reduce the debt, unless it is such a fact as raises an equity between the parties to the record. The simple fact that the defendant lost property during the war, without connecting the plaintiff with the loss, does not raise such an equity between the parties as the jury has a right to adjust by reducing the amount of the debt.