39 Vt. 412 | Vt. | 1867
The opinion of the court was delivered by
This 'case was argued at the February Term, 1865, and held for consideration principally to await the argument of some other cases pending and involving similar questions. The county court having sustained the motion and dismissed the writ, it must be assumed that that court found the facts alleged in the motion to dismiss to be true as alleged. The writ bears date September 19th, 1864, and it appears that the same, or a like motion was
In order to sustain the pm forma ruling of the eounty court dismissing the suit, we must hold that the simple fact that the writ issued without a stamp, renders it invalid without reference to the intent of the person issuing or causing it to be issued, as the motion does not allege that the omission of the stamp was “with intent to evade the provisions of this act.” This section is penal in its character, both as to the forfeiture of the pecuniary penalty and as to the forfeiture of the instrument, document or paper. In order to the incurring of the penalty it must appear that the offence has been committed. The act expresly makes the intent to evade the provisions of the act a necessary ingredient of the offence, and then provides that the offender “shall for every such offence forfeit the sum of two hundred dollars, and such instrument, documentor paper,” etc., “shall be invalid and of no effect.” The words, “such instrument,” mean an instrument in reference to which the offence has been committed. It is clear that an indictment, complaint or declaration for the pecuniary penalty would be bad without an allegation that the omission
Had congress intended to make such an absolute provision, language would have been used more appropriate to express the idea. The case cannot be likened to our statutes requiring certain contracts to be in writing, and prescribing the mode of executing certain instruments, such as the statute requiring two subscribing witnesses to a deed of real estate, and that requiring three subscribing witnesses to a will, in which the requirement is absolute, without reference to the intent of the party. In such statutes the purpose of the legislature is to prescribe the necessary requisites of the instrument to protect the parties against fraud and imposition. Congress had no such object in view, that being a subject of state legislation. The object of congress was collateral, to raise revenue, and whatever power congress has to declare the instrument
As the motion does not allege an intent to evade the provisions of the statute, it is insufficient.
What inference shonld he drawn by the triers of the facts, from the omission of the stamp unexplained by the party making, issuing or using the document, it is not necessary to decide, hut the intent must he alleged and found in order to render the document invalid. This court can not intend that the county court, found what is not alleged.
Judgment reversed, and judgment that the defendant answer over, and case remanded to the county court.