The true meaning and effect of the act of congress relating to stamps upon written instruments, under which this case arises, may be best reached by first considering the provisions of the previous acts, and the adjudged cases, upon the same subject.
The early stamp acts of the United States went no further than to declare that certain instruments and writings, not stamped as required by law, should not “ be pleaded or given in evidence in any court, or admitted in any court to be available in law or equity,” unless or until duly stamped. U. S. Sts. 1797, c. 11, § 13; 1813, c. 53, § 7; 1 U. S. Sts. at Large, 531; 3 Ib. 79.
The internal revenue act of 1862, c. 119, § 5, as originally passed, indeed provided that, if any person, after the 1st of October 1862, should make, sign or issue any instrument, document or paper, of any kind or description whatsoever, without being duly stamped, he should incur a penalty of fifty dollars, “ and such instrument, document or paper as aforesaid shall be deemed invalid and of no effect.” But, before that act went into operation, that section was amended by the act of 1862, c. 163, § 24, which provided that no instrument, document or paper, made, signed or issued before the 1st of January 1863, should be deemed invalid and of no effect for want of a stamp; but that it should not “be admitted or used as evidence in any court” until duly stamped. And the acts of 1863, c. 4, § 5, and c. 74, § 16, extended this time until the 1st of June 1863, and authorized the paper to be stamped in the presence of the court. 12 U. S. Sts. at Large, 475, 561, 632, 725.
The internal revenue act of 1864, c. 173, § 163, extended thesa provisions to all instruments, documents and papers signed or is sued before its passage; prohibited them from being “ recorded,”
The internal revenue act of 1865, which took effect on the ist of April 1865, did not touch § 163 of the act of 1864; but substituted for § 158 another section in like terms, with additional provisions authorizing any instrument made or issued without stamps to be subsequently stamped upon application to the collector of internal revenue for the district, and payment to him of the price of the proper stamp, and either payment of the penalty, or proof to his satisfaction, within twelve months after the making or issuing of the instrument, that it had not been then duly stamped “ by reason of accident, mistake, inad
In some states, indeed, instruments executed while the acts of 1864 and 1865 were in force, on which stamps had been omitted without fraudulent intent, have been held to be void. Hugus v. Strickler, 19 Iowa, 413. Miller v. Morrow, 3 Coldw. 587. Maynard v. Johnson, 2 Nev. 16. Wayman v. Torreyson, 4 Nev. 124. But the courts that have so decided do not appear to have had before them any of the opposing decisions, above cited, which we cannot but consider more reasonable as well as more authoritative.
The internal revenue act of 1866, which took effect on the 1st of September 1866, and was in force at the date of the agreement now sued on, substituted, in the stead of § 158, an enactment in substantially the same words, so far as this case ig
In Carpenter v. Snelling, 97 Mass. 452, it was held that the provision last quoted applied to the courts of the United States only, and did not affect the rules of evidence in the state courts; and it was assumed, and was indeed necessarily involved in the decision, upon the ground on which it was put by the court, that under the act of 1866, as under the previous laws, the omission to affix a stamp, if by inadvertence or mistake, and without intent to defraud the revenue, did not render the instrument wholly void. It would seem, indeed, that the point need not have been decided in that case, because there was no legal deficiency of a stamp, since the omission to stamp a writing of defeasance could hardly, upon any just construction of this statute, be deemed to invalidate the absolute deed, executed as part of the same transaction, and itself duly stamped, under which the defendant claimed title. See Peate v. Dicken, 1 Cr. M. & R. 422; S. C. 5 Tyrwh. 116. But that consideration, although mentioned by the court, was not the ratio decidendi ; and the judgment went upon the ground that, assuming the instrument in question not to have been stamped in accordance with the provisions of the statute, it was still, in the absence of proof of fraudulent intent, valid, and admissible in evidence in the courts of this Commonwealth.
Upon reexamination, we see no reason to be dissatisfied with that decision, or with the ground on which it rests.
The insertion of the words “ not being stamped according to law,” in the provision of the stamp act declaring instruments to be void, does not necessarily change or extend the operation of that provision, and could not well be held to do so, consistently with the other provisions reenacted in the same section, the nature and effect of which it may be well to recapitulate in their order and in a connected series. The section, in its present shape, as in the former acts, does not declare all instruments not duly stamped to be void, but only “ such ” as have been already mentioned, that is to' say, those that fail to have a proper stamp by reason of its having been omitted with intent to defraud the provisions of the act. It provides that a person claiming title under an unstamped deed may convey a good title by deed duly stamped; and a deed not stamped as required by the act has been therefore held to be a valid con sideration for a promissory note. Lambert v. Whitelock, 29 Ind.
This construction is strengthened by the enactment in the subsequent section, that no instrument or paper, signed or issued without being duly stamped, “ shall be recorded, or admitted or -used as evidence in any court,” until the proper stamp shall have been affixed thereto; for if the instrument, by reason of the mere omission of the' stamp from whatever cause, were absolutely void, it would be superfluous to provide that it should not be admitted or used in evidence.
The decision in Carpenter v. Snelling, 97 Mass. 452, that this enactment must be limited to the courts of the United States, and not be construed to extend to, if indeed it could constitutionally bind, the state courts, was made after full consideration ; is in accordance with the judgments rendered, without a doubt being raised upon this point, by the supreme courts of Vermont, Maine and Pennsylvania in the cases above cited, and with the later adjudications of the very question in Griffin v. Ranney, 35 Conn. 239, Craig v. Dimock, 47 Ill. 308, Bunker v. Green, 48 Ill. 243, and United States Express Co. v. Haines, Ib. 248 and is in harmony with, if it does not fall within, the principle of construction upon which the amendments of the Con
We are aware that the supreme court of New York, in an early case, held that under a similar provision in the act of 1797, c. 11, § 13, a note not stamped as required by that act could not be given in evidence. Edeck v. Ranuer, 2 Johns. 423. But the case was submitted without argument, and was decided before the effect of acts of congress upon the jurisdiction and practice of the state courts had been the subject of thorough judicial examination. The attention of the court does not appear by its opinion, as delivered by Mr. Justice Spencer, to have been directed to the question whether the rule of evidence prescribed by the stamp act was applicable to the courts of the state; but to the single question of the repeal of that act by the act of congress of 1803, c. 19, with provisions allowing the recovery and distribution of fines already incurred, and the stamping, by the collector of customs, of instruments not duly stamped. And it was afterwards held by the same court, upon much consideration, in an opinion delivered by the same learned judge, that congress could not confer upon the state courts jurisdiction of suits for the recovery of similar fines. United States v. Lathrop, 17 Johns. 4. We are not informed of any other case in which the provision of the stamp act regulating the admission of unstamped instruments in evidence has been applied in a state court, except that of Plessinger v. Depuy, 25 Ind. 419; and in that case also the question of its applicability does not seem to have been considered.
On the other hand, it has been said in Illinois and Kentucky, that to declare contracts not stamped to be wholly void was beyond the constitutional power of congress. Latham v. Smith, 45 Ill. 29. Hunter v. Cobb, 1 Bush, 239. We should not be preoared to adopt that view, without stronger reasons than are
The result is, that, as no evidence was offered that the stamp upon the” contract in suit had been omitted with fraudulent intent, the learned judge erred in sustaining the defendant’s objection, and the plaintiff is entitled to a
New trial.