Wilkes v. Hughes , 37 Ga. 361 ( 1867 )

Harris, J.

Until the adoption of our Code, the rigor of the common law principles relative to contracts of bailment, admitted of no modification. A spirit of equity, consonant with the impulses of conscience, was wisely infused into our present system ; indeed it was impossible to pretermit ample and just provision for apportionment in such a case as this, without marring the obvious purpose of the codifiers, that of rendering the principles and practice of the two sides of the Superior Courts as near as practicable, alike.

This was a contract for the hire of a negro for the year, 1865. It is an historic fact known to the world that, with the capitulation of the armies of the Southern Confederacy, and the military occupation of Georgia in April, 1865, slavery practically ceased. The owner could not any longer exercise dominion or control over his slave. The military authorities not only would not countenance any control, they absolutely prohibited any attempt to hold slaves involuntarily to service.

By a force not to be resisted, and to which the rights of the people of Georgia had to succumb as they were a conquered people and at the mercy of the conqueror, Hughes, the defendent, the hirer of the negro Ben, had, like other whites, to yield. By the effect of the war and this military compulsion, he lost from April, 1865, the services of the negro Ben for the remainder of the year, and without any fault on his part. These facts bring his defence clearly within the provisions and equity of the Code, and we affirm the judgment below, apportioning the hire in this case of bailment. ,