Campbell v. Wilcox

ERROR to the Circuit Court for the Southern District of Ohio.

A statute of July 13th, 1866, enacts, that any person who shall accept, negotiate, or pay, or cause to be accepted, negotiated, or paid, any promissory note, without the same being duly stamped, or having an adhesive stamp for denoting the tax chargeable thereon, and cancelled, &c., 'with intent to evade the provisions of the act,' shall forfeit $50, and that such instrument or note 'not being stamped according to law, shall be deemed invalid and of no effect.' A mode is provided in the act by which instruments may be stamped after being issued.

These provisions being in force, Wilcox sued A. &. L. Campbell in the court below, declaring upon four promissory notes of theirs, dated 4th August, 1866. The declaration contained the usual averments according to the established precedents in such cases, but did not aver that the notes were stamped as required by the act of Congress, either at their date or at any subsequent time. The defendants demurred generally. The demurrer was overruled, and they pleaded to the merits. The case being submitted by consent to the court without the intervention of a jury, judgment was given in favor of the plaintiffs for $10,805 On error the only question was on the demurrer.

Mr. Stanbery, for the plaintiff in error:

The English precedents of declaration upon instruments subject to stamp duties, do not indeed contain an averment that they were stamped at their date, or at any subsequent time, but they are not in point, for the want of a stamp does not in England invalidate the instrument, but only excludes it from being used in evidence until stamped. Our statutes declare the unstamped instrument invalid until a stamp is affixed by an application to an internal revenue officer. If the stamp is necessary to give validity to the instrument, it would seem that the declaration should aver that the note was stamped.

Mr. W. Cornell, contra.

Mr. Justice FIELD delivered the opinion of the court.