2 Colo. 70 | Colo. | 1873
By the revenue act of 1864 (13 Stat. at Large, 295), an instrument not stamped according to law might be stamped in the presence of the court, and by the act of 1866 (14 Stat. at Large, 143), authority was conferred on the collector of the district to affix the proper stamps in all cases in which they had been omitted. Under the act of 1866, the collector was authorized to remit the penalty prescribed by the act, within twelve calendar months.from the 1st day of August in that year, upon satisfactory proof that the omission to stamp the instrument was not intentional. This act was subsequently amended (16 Stat. at Large, 257) as to the time within which the collector should have power to remit the penalty, by striking out the date 1866 and inserting 1871, and thereby it was required that the instrument should be presented to the collector within twelve calendar months from the 1st day of August, 1871. In this instance, the promissory note was presented to the collector in February, 1871, prior to the time fixed by the act of 1870, but we think that the collector had full power to remit the penalty at that time. The limitation expressed in the act of 1866, as well as the amendment of 1870, was designed to insure diligence on the part of the holders of unstamped instruments, and the act should be regarded as extending the time within which the collector might remit
There is unquestionably a technical difficulty in enforcing a contract for the payment of interest after the same contract has been broken by the non-payment of the principal sum, but this difficulty may be overcome by regarding the interest agreed upon, as damages which the law will award, as a compensation to the injured party. I concede that in this view the parties will be allowed to liquidate the damages to be awarded for the non-payment of money, but to this there can be no objection, where, as with us, there is no law against usury, and the agreement of the parties, as to interest, is expressly sanctioned. Although the authorities are not uniform upon the point, I conceive that the rule, that the parties to a contract for the payment of money may not liquidate the damages to be recovered upon breach thereof, was invented to support the statute against usury. Orr v. Churchill, 1 H. Black. 232.
By our statute the rate of interest is not arbitrarily fixed at ten per cent, but it is declared that such shall be the rate when no other is established by the parties. The theory of the law is, that money may be worth more or less than ten per cent per annum, and that the parties to the contract may determine its value ; but if no agreement is made re
The judgment of the probate court is affirmed, with costs.
Affirmed.