
    William A. Rawson, plaintiff in error, vs. Charles R. Burke, defendant in error.
    An affidavit by the plaintiff in a pending suit on a debt contracted before June, 1865, which affidavit states that all legal taxes chargeable by law in the debt have been paid for each year since the making of the debt, is a substantial compliance with the Act of October 13th, 1870, though the word “ duly” is omitted.
    Eelief Act of 1870. Construction of Statutes. Before Judge Harrell. Stewart Superior Court. April Term, 1871.
    This case and that of Eawson vs. H. M. Jenkins, were suits on notes made prior to June, 1865. The plaintiff had filed affidavits that all legal taxes “ have been paid for each year since the making of same.” The Court dismissed each, because the affidavits did not state that all legal taxes “ have been duly paid for each year since the making of the same.” This is assigned as error.
    E. F. Watts ; John T. Clark, for plaintiff in error.
    Beall & Tucker ; Ingram & Craweord, for defendant.
   McCay, Judge.

We are clear that this affidavit is a substantial compliance with the Act of October 13th, 1870. To construe the Act as requiring the plaintiff to swear that he had punctually, at the several times the tax was due, paid the same, would be to make it put a penalty upon him for the non-performance of an act which was subject to no such penalty at the time it was omitted to be done. If the tax is paid at any time before the affidavit is made, it is duly paid, since it is paid according to law, and to the proper officer, and is fully paid for each year, etc.

Judgment reversed.  