Winter v. H. H. Epping & Co.

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.