This case is the same in principle with the cases of Butler & Weathers and Flipper & Read, etc., 39th Ga., 524, and must be controlled by them.
The* defendant below himself says that the plaintiff was not in any way connected with his losses by the war. And there is no natural or legal equity why, if that be so, the plaintiff should abate his claim on- him. That would perhaps be merey, but it would not be equity.
*662It is, in our judgment, an improper construction of the Act of 1868, known as the Relief law, to understand it as declaring that the simple loss of property by the war begets such an equity in the defendant as to allow the jury to consider that fact as an element in finding what he is indebted to the plaintiff.
The Act, it is true, allows evidence to be given of the loss, but it is added, “and by whose default.”
To make such an equity as the statute contemplates, it must be shown that the plaintiff was in some way the cause of the loss, that it was by his default.
The statute does not and could not, from the nature of the case, define what specific default of the plaintiff was alluded to. Each case must stand upon its own facts. But it must appear that the plaintiff was in default, that the loss was produced by some act of his, or by some failure of his to do and perform some duty which he was bound to perform.
Judgment reversed.