concurring.
An examination of the case of Cutts & Johnson vs. Hardee, 38 Georgia, 350, and of the various eases decided by this Court under the Relief Act of 1868, will show that we have been careful not to say, that an Act of the General Assembly, permitting a defense to be set up to a debt, which defense was, in fact, no equitable defense, would be constitutional. Those cases all go on the ground that the defendant had some honest, fair equity, which, by the rules of law, he could not set up, and that the Act of 1868 was intended to give him the right to do this. Our general line of thought in those cases was that the whole object of Courts of justice, was to see to it, that parties get their honest, fair, equitable rights, and that no Act of the State Legislature which had that in view, could be obnoxious to that clause of the Constitution of the United States which prohibits impairing the obligation of contracts. We sustained the Act of 1868, on *563the ground that it allowed losses to be proven that were the fault of the plaintiff. We held then, and I hold still, that it is competent for the Legislature to furnish to the defendant a remedy for any equitable, honest, fair right he may -have against the plaintiff, and that it may do this by permitting him to plead it as a reply to any claim the plaintiff has against him, whether it has been ascertained by a judgment or not. But, as I have said, we have not held and do not hold, that the Legislature may arbitrarily create an equity, which does not in truth exist, and permit that to be pleaded. To hold this would, I think, be, to run right in the teeth of the Constitution of the United States. The case of Satterlee vs. Mathewson, 2 Peters’ Reports, 482, and the cases of Baker vs. Herndon, 17 Georgia, 568, Knight vs. Lassiter, 16 Georgia, 151, Bearcy vs. Stubbs, 12 Georgia, 437, do not, in my judgment, meet this. In all these cases there was a bona fide right; the laws were intended merely to give remedies, for actual, existing, honest claims.
By the settled rules of the law of nations, (which is at last nothing but the reduction into principles of the teaching of nature and relation, as to what is right,) the individual citizen is not responsible for the results of war, even to those who have taken no part in it. Much more is this true if both sides have taken part in it. The argument which sets up the hardship of allowing these old debts to be collected out of those who have suffered by the common act of all, confounds the principles of equity and mercy. Courts may well deal with the one, but the other is not within their sphere.
If the Legislature may say that A’s debt against B may be set-off by B’s losses, for which A is not, in reason and fairness, liable, it may say it may be set-off by any arbitrary thing, that it may be declared null or paid — right in the teeth of the constitutional inhibition. Eor these reasons we cannot sustain this part of the Act of October 13th, 1870.