concurring.
The facts in this case have already been stated, and it is not necessary to recite them further than it may be necessary to elucidate our opinion of concurrence in the judgment pronounced by the Court. In Graham vs. Clarke, this Court *297held that, to sustain a plea, under the Relief Act of 1868, it must appear that the loss which the defendant claims as an equitable ground for reducing the plaintiff’s claim was, in some way, the fault of the plaintiff. Mere loss of property, by the late war, or in consequence of its result, is not sufficient ground for the reduction of a debt contracted before the war. Such is the judgment of the Court in the case referred to; and the naked issue in this case is whether there was sufficient testimony to sustain the finding of the jury, under the principles of law which we have laid down. For, if the record discloses such testimony, even although it is slight, this Court will not reverse the judgment of the Court below refusing to grant a new trial. Upon this point we may remark, in advance, that there is no difficulty in sustaining the verdict of the jury, upon the ground that Camp agreed to receive bank bills in payment of this execution. The question is, at what time; whether before the sale of the property of Phillips, or subsequently thereto. Steed man testifies that, at the time he purchased the property from Phillips, the agreement between Phillips and himself was that he, Phillips, was to pay off the executions existing against him, and that he paid Phillips bank bills as part consideration for the purchase of the property. The amount of the execution was deposited, in bank bills, with the Clerk of the Superior Court, from which the execution issued, and were, by him, turned over to the sheriff, who offered them to the plaintiff in error, who admitted he had agreed to take bank bills, but required Georgia Railroad bills, and refused such as were-then offered. In a conversation between young Phillips and Camp, Camp admitted that he had agreed to take bank money from his father in payment of his execution.
In the view which we take of the evidence in this case, we-are satisfied, from all the surrounding circumstances, that there was evidence upon which the jury might find that the-sale, by Phillips, of his property for bank bills, with which to pay his debts, coupled with the admission of Mr. Camp-*298that he had agreed to receive such currency in payment for his judgment, and, when tendered to him by the sheriff, his objection only being to the character of the bank bills, and not to the fact that he had so agreed to receive bank bills, was such an admission, coupled with such sale, and tender, and deposit, to the amount of the execution in the Clerk’s office of the Superior Court, as sustained the jury in their finding. It will be recollected, in this case, that Mr. Phillips, the party with whom this agreement was originally made, in 1863, and who made this sacrifice of his property for a currency which had ceased to be common or usual in transactions of trade or business, sleeps in his grave since 1864, and that the evidence of this contract comes from the lips of Camp, by admissions made, and nowhere controverted or contradicted in this record, and must be taken in connection with the acts of Phillips, as appears from the evidence of the Clerk and sheriff, with every legitimate inference that may shed light upon the purpose of the one, as connected with the promise and agreements of the other. I therefore concur in the opinion pronounced by the Court, upon the principle that the agreement to take the bank bills in extinguishment of this execution before the sale-of the property was sufficiently proved to sustain the finding of the jury.
For myself, however, I do not hold it necessary, to bring the defense within the principle of the Relief Act, that the 'party should have sold his property upon an agreement first entered into before the sale; that the plaintiff should i’eceive the bank bills; nor do I hold such to be the principle held by this Court in 40th Georgia. The Judge, in delivering that opinion, evidently puts each case upon its own peculiar equities; and in the case of Cutts & Johnson vs. Hardee, in 38th Georgia, defining the equities, as well as the general proposition therein laid down by the Court, and in a fair construction of the statute, any act of the plaintiff, growing out of the contract, or arising, subsequently, by which the plaintiff had occasioned a loss by some failure of his to do *299what he had agreed, or which would connect him with such loss by virtue of any act upon his part, ought to go to the jury, to be by them considered and adjudicated. And, while we recognize the mere whim of the jury in the assertion of equity, without proof, will not be supported by the Courts, still, their discretion is broad — intentionally broad — as conferred by the statute, where even proof is slight to connect the plaintiff with the loss of- the defendant’s property, which may be proved by circumstances as well as by positive testimony. This discretion ought not be interfered with or set aside, except in very flagrant cases of abuse. And where, in 1863, a party agreed to take any specific currency in ex-tinguishment of a debt, in or out of judgment, and the defendent, by sale of property, or by loan, or in any other manner procured said funds and tendered them, in compliance with such agreement, and the plaintiff refused to perform what he had agreed, such failure constitutes an equity, under the statute, the adjustment of which, by verdict, the Courts would not be authorized to disregard and set aside.