
    James F. Winter, plaintiff in error, vs. H. H. Epping & Company, defendants in error.
    An action was brought by the plaintiff against the defendants, to recover $500 00 in gold coin, deposited with the defendants on the 20th March, 1865, and there was no evidence of any demand having been made on the defendants for the payment of the gold coin prior to the 1st of June, 1805:
    
      Held, That this was not such a debt or contract as comes within the provisions of the Act of 1870, requiring an affidavit of the payment of taxes thereon, and it was error to dismiss the plaintiff’s action on the ground that no affidavit of the payment of taxes had been filed.
    Relief Act of 1870. Before Judge Harrell. Muscogee Superior Court. May Term, 1871.
    Winter’s action against H. H. Epping & Company was begun in 1869. It contained the following averments : On the 20th of March, 1865, defendants bought for the joint account of himself and themselves, $2,500 00 in gold coin, which Epping kept for their joint benefit. On the 15th of April, 1865, these joint owners sold $1,000 00 of said coin, and on the 17th of June, 1865, defendants paid plaintiff $250 00 of said coin, leaving due him $500 00 of said coin, which plaintiff demanded “on the 24th day of ......, 1865, and since,” and defendants refused to deliver the same to him. Plaintiff did not file his affidavit that he had paid all legal taxes required of him, as is required in suits on contracts made or implied prior to 1st of June, 1865, by the Relief Act of 15th of October, 1870, and for this the Court dismissed the cause. This is assigned as error.
    Peabody & Brannon, for plaintiff in error.
    Moses & Downing-, for defendants.
   Warner, Judge.

This was an action brought by the plaintiff against the defendants to recover the sum of $500 00 in gold coin. On the trial of the case, a motion was made by defendants to dismiss the plaintiff’s case, on the ground that no affidavit of the payment of taxes had been filed as required by the Act of 1870, which motion was allowed by the Court and the case dismissed. Whereupon, the plaintiff excepted. It appears from the record that the plaintiff and defendants, on the 20th of March, 1865, purchased $2,500 00 in gold coin, on joint account, which was deposited with the defendants. The plaintiff claims that there is $500 00 of the gold so purchased on joint account due him. There is no evidence in the record of any demand having been made by the plaintiff on the defendants for the payment of the gold, prior to the 1st of June, 1865, and the majority of the Court are of the opinion that this is not such a debt or contract as comes within the provisions of the Act of 1870. Believing that Act to be unconstitutional and void, as to contracts made prior to the 1st of June, 1865, I concur in the reversal of the judgment in this case. The Court below erred in dismissing the plaintiff’s action, on the statement oí facts disclosed by the record.

Judgment reversed.  