
    F. A. Thomas, plaintiff in error, vs. Joshua Knowles, defendant in error.
    In a suit on a note made in 1864, and payable in January, 1866, it is necessary to file the affidavit of the payment of taxes required by the Relief Act of 1870.
    Warner, Chief Justice, dissented.
    Relief Act of 1870. Tax affidavit. Before Judge Greene Newton Superior Court. September Term, 1871.
    
      F. A. Thomas brought assumpsit against Joshua Knowles on a promissory note, dated March 14th, 1864, payable January 1st, 1866, for the sum of $500 00. The defendant pleaded the general issue, failure of consideration, and tender.
    The case was, by consent, tried by the Court without the intervention of a jury, upon the following agreed state of facts:
    
      “ 1st. The note was made in March, 1864, and due January 1st, 1866.
    
      “ 2d. - The plaintiff resided in Georgia at the time of making the contract, and resided in said State until the latter part of 1867.
    “ 3d. The note has been in the possession of plaintiff’s attorney, since suit, in this State.
    
      “ 4th. The plaintiff has resided in California since the first of 1868, and resides there at this time.
    
      “ 5th. No affidavit of having paid taxes has been filed in the clerk’s office.”
    On motion of counsel for defendant, the case was dismissed, and plaintiff excepted, and now assigns said ruling as error.
    Clark & Pace, for plaintiff in error.
    A. B. Sims, represented by Z. D. Harrison, for defendant.
   Montgomery, Judge.

Was the contract sued on in this case made or implied before the first day of June, 1865?” By concession, it was. The conclusion cannot be escaped, the facts not bringing the 'case within any exception to the Act; the affidavit of the payment of taxes must be filed.

Judgment affirmed.

McCay, Judge, concurred, and Warner, Chief Justice, dissented, but furnished no opinions.  