This action is brought upon a bond made in July, 1859. The referee, having reported in favor of the plaintiff, has ordered a judgment in his favor for the amount payable in the gold and silver coin of the United States. The report was made in 1870, and according to the then unreversed decision of the supreme court of the United States, the provision as to the amount being payable in coin was correct. Since that time, however, the supreme court of the United States has overruled its former decision, and now • holds the act of congress known as the legal tender act to be constitutional as applicable to contracts made before, as well as after the
Entries in the books of the Jefferson county bank were permitted to be read in evidence against the defendant’s objection. Myers Thompson, the witness for the plaintiff by whom these entries were produced, being asked to look upon the books “ and say if the bank, as appears therefrom, has held any and what paper made by David Smith and indorsed by Philander Smith.” He stated that he was not then in the bank, but could state what the book showed, and he then was permitted to proceed against the objection and state the contents of the books. S. D. Hungerford, a witness for the plaintiff, was asked, “ On exhibit ‘No. 22’ does the entry D. Smith, note, S. D. H., $469.58, December 11, 1859, refer to the same claim entered as $491.78 before mentioned ?” This the defendant objected to as incompetent and as calling for an opinion; the objection was overruled, the defendant excepted, and the witness expressed the opinion “ I should think it did; I have no doubt about it.” It does not, so far as we discover, appear that the witness made the exhibit referred to, nor does any reason appear to show why his opinion on the subject was admissible.
The case contains a great amount of testimony concerning a great variety of transactions, the bearing and effect of all of which, while doubtless quite well understood and appreciated by the referee and counsel who heard the testimony, it is not easy fully to comprehend from the paper report of the evidence reported verbatim in the order in which it was given. The transactions which were the subject of the evidence are so numerous and obscure, that it is impossible for us to see with certainty that the evidence admitted by the referee, as it appears to us erroneously, did not and could not injuriously affect
Judgment reversed and new trial ordered, costs to abide the event. New referee to be appointed.