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 *529involve 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*530lature, 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.