Ordinary ex rel. Worrill v. Adams

Warner, Judge.

This was an action brought by the plaintiff on an administrator’s bond, dated 8th of January, 1865, to recover the amount of a. debt reduced to judgment, against the intestate, Samuel Adams, alleging that the administrators of Adams had wasted his estate. The original debt on which the judgment was obtained, was contracted in 1858, and was renewed several times. The amount due on it at the time it was reduced to judgment, in April, 1867, was about $>2,-600 00. The plaintiff filed his affidavit, under the provisions of the Act of 1870, in which he stated that he had paid all legal taxes chargeable by law on said debt, up to the year 1865, in which year no tax was assessed thereon; that in 1866, and 1867, he gave in said debt at what he believed to be its market value, to-wit: $1,000 00, and paid the tax thereon ; that since 1867, he had not given in and paid tax on the debt, because it was no longer a solvent debt, and ceased to have any market value whatever. On motion of defendant’s counsel, the Court dismissed the plaintiff’s action on the ground that the affidavit of the plaintiff was not a compliance with the requirements of the Act of 1870. Whereupon, *350the plaintiff excepted. If I believed the Act of 13th of October, 1870, to be a valid, constitutional Act, I should hold that the taxes on all debts contracted prior to the 1st of June, 1865, or on contracts in renewal thereof, should be regularly given in and paid, on all such debts, whether solvent or not, as a condition precedent, to entitle the plaintiff to recover on the same, in the Courts. That such was the clear and manifest intention of the Legislature, there can be no doubt. It is entitled “an Act to extend the lien of set-off and recoupment, as against debts contracted before the first day of June, 1865, and to deny to such debts the aid of the Courts, until the taxes thereon have been paid.” The third section of the Act declares, that “In suits upon such contracts, in every ease, the burden of proof showing that the taxes have been duly paid, shall be upon the party plaintiff, without plea by the defendant.” The fourth section of the Act declares, that “In every trial upon a suit founded upon such debt or contract, as described in this Act: Provided, that said debt has been regularly given in for taxes and the taxes paid, it shall be a condition precedent to recovery on the same, and in every such case, if the tribunal trying is not clearly satisfied that said taxes have been duly given in and paid, it shall so find, and said suit shall be dismissed.” In view of the condition of the people of the State, and the status of this particular class of debts, at the time of the passage of this Act, it can not be reasonably supposed that any member of the Legisla.ture was so stupid as to have intended that it should be an Act to increase the revenue of the State. The object and intention of the Act, as is patent upon its face, was to hinder? obstruct and prevent the collection of all debts contracted prior to the first of June, 1865, and those in renewal thereof; and for the accomplishment of that purpose, the aid of the Courts of the State is denied to the holders and owners of such debts, unless they shall make affidavit that said debts have been regularly given in for taxes and the taxes paid. That, the fourth section of the Act declares, shall be a condi*351tion precedent to their right to recover on the same. The Act makes no exception as to the solvency or insolvency of the debts, but embraces all suits founded upon any debt made or contracted before the first of June, 1865, or in renewal thereof. The plaintiff in this case, like all other honest taxpayers in the State, did not regularly, each year’, give in and pay tax on his debt, because he did not honestly believe it was a solvent debt when he gave in his taxable property, under oath; yet, the Act requires him to make an affidavit that this debt has been regularly given in for taxes, and the taxes paid on it, as a condition precedent to his right to maintain a suit on it in the Courts of the State. Because, as an honest, conscientous tax-payer, he could not swear it was a solvent debt when he gave in his taxes, in 1868, 1869 and 1870, and therefore, in the words of the Act, he has not regularly'given it in for taxes, and regularly paid the taxes on it, and, inasmuch as he cannot make the affidavit that he has done so, the Act outlaws him from the Courts of the State, as was most clearly the intention of the Legislature to do, in regard to that class of contracts specified in the Act. If, in my judgment, this was a valid, constitutional Act, I would affirm the judgment of the Court below in this case. But as I believe it to be an unconstitutional and void Act, I concur in the judgment of this Court, reversing the judgment of the Court below.

Judgment reversed.