This suit was brought upon a note, of which the following is a copy:
“ $250. On or before the first day of January next, we, or *108either of us, promise to pay Clement Davis, guardian of John M. Davis, a minor, the sum of two hundred and fifty dollars, for hire of negro boy named Jake, for the year 1865. January 3d, 1865.
[Signed.]
A. J. Herod,
J. J. Thigpen.
The defendants pleaded the general issue, and specially, failure of consideration, for the reason that said note was given for the hire of a negro boy called Jake, for the year 1865; that said negro boy became free by virtue of the surrender of the Confederate forces in May, 1865, and long before that time by virtue of the proclamation of the president ; that defendants were compelled to hire said boy from himself, and, in fact, did so hire him in order to retain his services, etc.
The defendants also gave notice to show under the general issue that said slave became free by virtue of the proclamation of the president; that he was in the act of leaving the defendant when, in order to retain the boy in his employment, he entered into a contract with him, agreeing to pay him for his work during the remainder of the year, etc.; and that defendant did not retain the services of the boy by virtue of contract with plaintiff, but by virtue of a contract with himself, etc.
To the special plea there was a demurrer, which was sustained by the court.
A trial resulted in a verdict for plaintiff under the rulings of the court, for the full amount of the note and interest. A motion for a new trial ivas sustained, and the defendant tendered further pleas setting out more fully the facts and circumstances of the defense, which were refused by the court, and not allowed to be filed.
Upon the trial the defendant objected to the note as evidence, for the reason that it was not “ stamped ” as required by the revenue laws of the United States,• which objection was overruled, and the note read to the jury. The defendant offered to prove the facts set out in his pleas and notice, *109also the value of Confederate money in January, 1865; to which plaintiff objected, and the objection was sustained by the court.
The court instructed the jury in substance for the plaintiff that the only issue before them was that joined on the plea of non asstcmpsit, and that the matters arising under the special plea and notice, were not all before them, or to be considered by them.
Several instructions were asked by defendant:
1st. That the note, from its date, was prima faoie payable in Confederate money — -it not appearing to the contrary on its face — were refused by the judge, and in lieu thereof, of his own accord, instructed the jury that this objection could only be taken by special plea or notice.
2d. That if there was no title to the slave, in plaintiff — that he left the hire of the defendants without their fault — that if the boy remained in the employment of defendant after May, 1865, not by virtue of the contract with plaintiff, but in pursuance of a separate contract of hire with the boy, then the defendants are liable only for hire up to the date of the new contract, was also refused.
Whereupon the jury found lor the plaintiff the amount of the note and interest, Avith costs, etc.
The record states a litigation, simple, and easy of solution, in the light of the last two or three years, involved by the pleadings and rulings, in almost interminable intricacies, which it were idle to attempt to solve in detail, as the cause, for reasons to be stated, will have to be remanded, when the counsel and the courts will, find no difficulty in adjusting the questions arising according to present knowledge, though at the date of this trial they were involved in some doubt.
The effect of the emancipation proclamation sought to be introduced by counsel, we think, does not necessarily arise. Should this question, however, come up in this, or any other cause, when fully and properly presented by counsel, this court will examine it with all the impartiality and deliberation which its gravity suggests.
*110The boy was hired by plaintiff to defendants, for the year 1865. Whether white or black, bond or free, he proceeded, under the contract, to work for defendants. A free white man might then have done, and might to day, do the same. To the extent of his service he was of benefit to defendants, under the contract, as would be a free white man, who might, at any time, consent to enter the service of another under a similar arrangement. This court, therefore, will not pass upon this question as to what particular time he became free, whether from the date of the emancipation proclamation, or at the surrender, though it is presumable from the record, that he was a slave, and was so hired by plaintiff to defendants, and that the dispersion of the Confederate forces, and the, presence of the Federal troops, caused the refusal of this boy longer to serve defendants, under the contract made for him by the plaintiffs. If the war had its hardships and its losses, so also, it h.ad its benefits. The revolution has touched every member of society, and every branch of business. The matter at bar is one in which the results of the war, it would seem, ought equally to effect both parties; and in justice, that the measure of recovery should be the period of service under the contract. Such, from the record, would appear to be the correct rule in this instance, at least. The situation is peculiar and extraordinary. Courts and legislalators have alike avoided a direct adjudication and determination of the problem to which the war has given rise, not necessary to the case before them. The constitutional convention of 1865, in prohibiting involuntary servitude in this state, premised the prohibition with the declaration that slavery had long before then ceased to exist. Precisely when, therefore, the slaves became free, is undetermined, as are many of the problems growing out of the changes of the last few years.
We are not disposed to undertake to solve these queries, until directly called upon, and then only when counsel shall first have exhausted the subject. We shall, therefore, leave the grave questions indirectly and imperfectly referred to in *111this case, unexamined, sending the case back upon a single point, viz : that of the law of February 19, 1867, chap. 282, laws of 1867, p. 373.
This law was in force when this suit was tried, and its provisions should have been applied to the claim sued on.
Whatever difficulties of pleading occurred, should have been determined by the court, with a view to bringing the merits of the controversy between the parties, fairly to trial, under art. 180, p. 508, of the Code. The power there conferred, should be liberally construed, and liberally employed in all cases, for the purposes of justice.
Without passing upon each particular point raised, the general result of the rulings was not what it should have been, with the ample powers and duties of the court in directing the making up of the issue.
This case must, at all events, be sent back for a new trial, because the law of 1867 was disregarded, and because the court, if the pleadings were defective, failed so to direct the issue that its terms might be applied, and justice otherwise done, between the parties.
With the aid of discussions, adjudications, and laws, since the trial of the cause, there will be no difficulty in disposing of it on legal and correct principles.
Judgment Reversed-, and cause Remanded.