#### Grant vs. The Connecticut Mutual Life Insurance Company.

*Parties. Notice to defend, effect of. Pleading. Bwrcten of proof. Stamps. Charge, reducing to writing.*

1. Ia an action upon a life insurance policy, where plaintiff claims as assignee thereof, a verified answer containing averments, which, if true, merely show that the administrator of the assured, and not the plaintiff, is entitled to the moneys claimed, and that such administrator has commenced an action against defendant in the court of a foreign jurisdiction (where he resides) to recover the *money*— held not to show that a complete determination of the controversy cannot he had without making the administrator a party.

2. The only issue raised hy the answer is, whether the plaintiff is the real *126and sole party in interest; and the facts which she must prove in order to recover will constitute a complete defense to the insurance company against the claims of the administrator.

3. The administrator could not he brought in by order of court as defendant to such an action, under sec. 10, ch. 124, R. S.; and *it seems*that the provisions of ch. 168, Laws of 1864, in reference to making -parties by order of court, relate only to persons within the jurisdiction of the court.

4. The defendant company, having notified the administrator of the pen-dency of this action, and given him permission to use its name in any defense he might desire to make, is thereby protected from any liability to pay the policy to him in case the plaintiff recovers in this action.

5. The complaint avers that the assured assigned the policy to plaintiff and constituted her his attorney to take all legal measures to recover (in his name, but for her own use,) tire amount thereof, in case of his death; that defendant, on etc., had due notice of all these facts; and that it wholly neglects and refuses to pay the amount alleged to be due on the policy. *He Id,*that an objection to any evidence under the complaint on the ground that it does not allege that any proof was ever furnished to the company that plaintiff had any interest in the policy, or that any demand of payment was ever made at the place where the policy is payable, was properly overruled.

6. The burden is on the party who disputes the validity of an instrument, on the ground that it was not stamped at the time of its delivery, to show that the stamp was omitted *with intent to evade the reverme laws. Bheinstrom vs. Oone*(26, Wis., 163,), adhered to; and *John vs. The State*(23 Wis., 504), modified.

7. Whether the acts of Congress affecting the admissibility of unstamped instruments as evidence, are intended to apply to state as well as federal courts, and whether, if so, they are valid as applied to state courts, are questions not here considered.

8. Remarks to the jury which were substantially a mere direction to find for the plaintiff, *held,*not to constitute a “ charge ” within the meaning of ch. 101, Laws of 1868, which requires the charge to be reduced to writing at the request of either party.

APPEAL from tie County Court of *Milwaulcee*County.

Action to recover the amount due upon a life policy issued by the defendant on the life of the plaintiff’s deceased son. The complaint, among other things, alleges the assignment of the policy to the plaintiff by her son on the day it was deliv*127ered to Mm, and tbe advancement by ber of all tbe money paid for premiums; wbicb are tbe only allegations denied by tbe answer. Tbe affirmative allegations of tbe answer, upon wbicb tbe defendant bases its prayer tbat tbe administrator of tbe deceased may be made a party to tbe action, and tbe motion for tbat purpose and tbe decision thereof sufficiently appear in tbe opinion of the court.

On tbe trial, tbe defendant objected to tbe introduction of any evidence under tbe complaint, on tbe ground tbat it does not state facts sufficient to constitute a cause of action, which objection was overruled. Tbe particular objections assigned also appear in tbe opinion. Tbe original policy and tbe assignment thereof .-attached to it were admitted in evidence, against tbe objections of tbe defendant; and the-plaintiff testified tbat she received them by mail about three days after they bore date, and tbat tbe assignment was in ber -deceased son’s handwriting. On cross-examination, she testified tbat ber son was owing ber for advances at tbe date of tbe assignment, but she had kept no account of such advances and could not tell the amount then due ber. The assignment appeared -to be duly stamped when introduced in evidence, but tbe testimony of tbe plaintiff upon cross-examination raised some doubt as to its having been stamped when she received it, and as to when and by whom tbe stamp was affixed.

It appeared in evidence' tbat tbe administrator of tbe deceased son was notified of tMs suit by tbe defendant, and bad permission to use its name in any defense he might desire to make. After tbe testimony was closed, tbe defendant renewed its motion tbat such administrator be made a party defendant, wbicb was again overruled. Tbe defendant then asked tbe court to charge tbe jury in writing: 1. Tbat if tbe jury are convinced tbat tbe assignment of tbe policy was not stamped in accordance with tbe revenue laws in force at tbe date of its execution and delivery to tbe plaintiff, they will find for tbe defendant. 2. Tbat said policy was not assignable, and Allen *128-A. Grant bad no assignable interest in tbe policy at tbe date of the assignment, and that, therefore, they must find for tbe defendant. Both of these instructions were refused, and no other •request for a charge in writing having been made, the court charged the jury orally, as follows : “There is no proof in this case on the issues joined on the part of the defendant, and, the assignment produced in court being duly stamped, you cannot ' go behind to inquire when it was stamped, the presumption being that it was duly stamped within the law; and you must find a verdict for the plaintiff, ” which instruction was immediately afterward entered by the court in its minutes, the re-pórter not being present;’ and the defendant excepted to it.

Yerdict for the plaintiff; and a motion for a new trial on the ground of the error of the court in giving such charge orally having been denied, a judgment was entered in accordance with the verdict, and the defendant appealed.

*Waldo & Van Valkenburg,*for appellants,

contended that under sec. 1. ch. 168, laws of 1864, it was the duty of the court to make the administrator of the deceased son a party defendant to this suit; that the complaint did not show that the plaintiff furnished proof to the defendant of her interest in the policy, or demanded payment at the place where the policy was payable, or elsewhere, and was, therefore, insufficient; that the assignment not being stamped, as required by sec. 158. ch. 184, U. S. statutes of 1866, when executed and delivered, was invalid and not admissible -in evidence; and that the oral remarks made by the judge to the jury, constituted a charge, and because they were not first reduced to writing the judgment must, under chap. 101, laws of 1868, be reversed on appeal, citing *Millard v.*Lyons, 25 Wis., 516 ; *Patterson v. Ball,*19 Wis., 248.

*Garys*and *Oottrill,*for respondent,

contended that the defendants’ motions to make the administrator a party were properly overruled, because made without proper notice to the plaintiff, citing *Oorwith y. State Bank, 8*Wis., 376; *Butler .v. Mitchell,*17 id., 52; that the answer did not show that the administrator *129Rad in fact any title to the policy or the moneys due thereon, but meiely that he claimed certain things, and was in that respect frivolous; that the only issue raised by the pleadings was whether the policy had been assigned as stated in the complaint, a complete determination of which could be had without bringing in the administrator as a defendant; that the defendants’ remedy, if any existed, was by interpleader, the statute of 1864 not being a substitute for that remedy, as provided for by section 22, ch. 122, R. S., nor for the equity practice in relation thereto; but the defendant could not litigate the question of the assignment and at the same time interplead, citing *Marvin v. Elwood,*11 Paige, 865; *Oppenheim v. Wolfe,*8 Sandf. Ch., 571; *Newton v. Moody,*7 Dowling, 582; *VanBuskirk v. Roy,*8 How. Pr., 425; *N Y. &. N. H. R. R. Co. v. Schuyler,*1 Abb., 417; *Eagleson v Clark,*2 Abb., 864; that the act of 1864 was not applicable to this case, nor to any except equitable actions; that if the assignment was not stamped before delivery, which was not proved, it would yet be valid unless the stamp was omitted “ with intent to evade ” the revenue act, citing *Beebe v. Hutton,*47 Barb., 187; *New Haven and Northampton Co. v. Quintard,*6 Abb. Pr., N. S. 128, and S. C. 87 How. Pr. 29 ; *Tripp v. Bishop,*56 Penn., 424; *Carpenter v. Snelling,*97 Mass., 452; *Lynch v.*Morse, in note to same ; *Gibson v. Hib-bard,*18 Mich., 214; and that if the oral remarks made by the judge to the jury be considered a charge, they might properly be delivered orally under chap. 89, laws of 1871, and taken down by the official phonographic reporter; but it was not a charge at all but a mere directing of the verdict, citing *Millard v. Lyons,*25 Wis., 516.

Cole, J.

This action is brought upon a policy of insurance issued by the defendant on the life of *Allen A. Grant,*deceased, and claimed by the plaintiff to have been assigned to her by him on or about the day of its date. The company in its answer alleges that the insured died in Washington in the Dis*130trict of Columbia, in tbe year 1870, and that afterwards, and about tbe lOtb of January, 1871, one *Albert Grant,*was duly appointed administrator of tbe estate of *Allen A. Grant*by tbe Supreme Court of said District of Columbia, wbicb bad jurisdiction of said matter; that tbe administrator qualified and entered upon tbe duties of sucb administrator, and claims and insists that tbe assignment of said policy of insurance to tbe plaintiff (if one was in fact made) was made simply and only as a security for a small sum of money not to exceed $600, before then loaned by tbe plaintiff to tbe insured; and that tbe money or a portion thereof has been repaid, and that tbe right of tbe plaintiff, if any, to said policy, is only a lien for tbe money loaned, wbicb has been partially or fully paid, and that tbe said policy and tbe proceeds thereof belong to him, tbe administrator. Tbe company further stated in its answer, that tbe administrator bad filed bis bill of complaint in tbe Supreme Court of said District of Columbia, against tbe plaintiff in this action and this defendant, for tbe collection of said policy of insurance and tbe sum due thereon, and bad served an order, issued out of said court, upon this defendant, enjoining and restraining it from paying tbe sum secured by tbe policy of insurance to tbe plaintiff, and that that suit is still pending; further, that it was ready and willing to pay tbe amount due on tbe policy to tbe person to whom it rightfully belongs; and alleges and claims that a complete determination of tbe controversy involved in this action cannot be bad without tbe presence of tbe administrator, who was interested in tbe subject matter of tbe controversy and should be *protected;*and prayed that sucb administrator be made a party to this action.

Afterwards, on tbe trial of tbe cause in tbe county court, tbe defendant, before a jury was' empannelled and sworn, moved orally, without having given any notice of sucb motion, in writing or otherwise, that tbe court upon tbe pleadings enter an order making tbe administrator a party to tbe action, wbicb ¡motion being opposed by tbe plaintiff, was denied. This ruling *131of the court, it is insisted, was error. And the statute relied upon in support of this position is chapter 168, laws 1864, which, in substance, provides that whenever it shall appear to the court in which an action is pending, by affidavit or the verified answer of a party to the action, that a complete determination of the controversy cannot be had without the presence of other parties, or that any person not a party to the action is interested in the subject matter of the controversy, and whose interests in such subject matter are such as should be protected, it is made the duty of the court, at the instance of any party to the action, to enter an order making the person so interested a party to the action. Now, without stopping to consider the objections taken on the part of the plaintiff to the manner of the application to have the administrator made a party, we will say that we see no sufficient reason for bringing him before the court in this cause. The issue raised by the answer was whether this action was prosecuted in the name of the real party in interest And this, of course, depended upon the question whether the policy of insurance had been properly assigned to the plaintiff, by Allen A. Grant, and whether she had the right to collect and control the proceeds thereof. If she had, then she was the only person interested in the subject matter of the controversy, and the only party that the company could insist should be before the court in order to be protected in the payment of the money due on the policy. And, if the policy had not been assigned to plaintiff, and she did not own it and the money due upon it, then she must inevitably fail in the action.

The facts which the plaintiff must prove in order to recover, would constitute a complete defense to an action brought by the administrator on the policy. For, if the insurance money belonged to the plaintiff, then the administrator had nothing to do with it. And whether it did in fact belong to her, was the issue raised by the pleadings. Besides, we do not very well see how the court could bring in the administrator, he being a nonresident. We do not think that he could be brought in under *132any of the subdivisions of section 10, chap. 124, R. S. And it seems to us that the cases provided for by the law of 1864, where the court is authorized to- “prescribe the manner in which” the- copy of the order and notice of the suit “shall be served, and. also the time within which such person or persons so served shall appear and file an answer,” relate to cases where the parties are within the jurisdiction of the court. Moreover, it may be added in this connection, that the bill of exceptions shows that the company notified the administrator of the pen-dency of this action, and gave him permission to use its name in any defense he might desire to make. This fact might not have been known to the court when it decided the motion, but it- shows, nevertheless, that the administrator has had a full opportunity to contest the right of the plaintiff -to the insurance money under the answer of the defendant. But upon the merits, as we have before stated, we think the application was properly denied. Eor, if the plaintiff showed, as she must do in order to recover, that the policy had been legally assigned to her by *Allen A. Grant,*and that she was entitled to the money due thereon, then the administrator had no interest whatever in the controversy. And the company had taken the requisite steps to protect itself against the liability to pay the policy twice, and was only interested in paying it to the real- owner. We therefore can see no reason why the relief asked in its answer, that the administrator be made a party, should be granted. The defendant also objected on the trial to the introduction of any evidence under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action.

The particular objection taken to the complaint is, that it does not aver that any proof was ever made or furnished the company that the plaintiff had any interest in the policy sued on, or'that any demand of payment was ever made upon the company at Hartford, Connecticut, where by its terms the policy was payable. It is alleged in the filth paragraph of the complaint that *Allen A. Grant,*on the 15th day of July, 1868, duly *133assigned unto the plaintiff all Ms rigM, title and interest in tRe policy, and constituted tRe plaintiff Ris attorney in Ris name but for Rer own use, to take all legal measures for tRe complete recovery of tRe amount mentioned in tRe policy in case of Ris death ; “ of all wRicR tRe defendant on tRe 4th day of October 1870, had due notice.” In the sixth paragraph the amount due upon the policy is stated, which sum it is averred “ the defendant wholly neglected and refuses to pay the plaintiff.” This reference to the complaint shows that the objection is not well taken. It is further objected that the original asignment of the policy should not Rave been admitted in evidence for the reason that it was not stamped at the time of its execution and delivery, as required by the act of congress. TRe original assignment, however, was duly stamped when offered in evidence, but the plaintiff among other tMngs, testified on cross-examination, *“*that she did not think there was any internal revenue stamps on the assignment introduced in evidence at the time when she first received it, and that if there was, it must have been got off; that she did not put the stamp on the assignment or know who did so, and that she did not think that the writing on the stamp did look like the hand-writing of her son Allen, and she thought “ it was not his hand-writing ; also that she did not know who did affiix a stamp to such assignment, nor when it was affixed thereto,'and further that she could not remember whether the assignment was stamped when she received it, but supposed that her son had done the business legally.” This is substantially all the evidence there was upon the point as to when the assignment was stamped, and the court was asked on the part of the defendant to instruct the jury that if they were convinced the assignment of the policy was not stamped in accordance with the revenue law in force at the date of its execution and delivery to the plaintiff they must find for the defendant. This instruction the court refused to give, and to the refusal to give the same, the defendant excepted.

In the case of *Rheinstrom v. Cone et al.,*(unreported,) this court, *134following tbe great current of authority where the question has arisen, decided that an unstamped note was not invalid unless the requisite stamp was omitted with the intent to evade the revenue laws of congress. That is as far as this court has had occasion to go in giving a construction to those enactments. We are quite well aware of the fact that some of the most respectable tribunals of the country have decided that these enactments were limited to the courts of the United States, and did not apply to the state courts *(Carpenter v. Snelling,*97 Mass., 452; *Green v.*Solway, 101 do., 248; *People ex rel. Barbour v. Gates,*43 N. Y., 40; *Craig v. Dimock,*47 Ill., 308; *Clemens v. Conrad,*19 Mich., 170; *Weltners v. Riggs,*3 West Virg., 445; *Hunter v. Cobb,*1 Bush. (Ky.) 339; and *Spooner v, Eiflerr,*1 Heiskell (Tenn.) 633), while some of them deny altogether the power of congress to prescribe rules of evidence in respect to contracts which shall be binding upon the state courts, even if it should attempt to exercise such a power by declaring that all contracts not duly stamped should be void everywhere. It is not, however, essential to the disposition of the case before us to enter upon the field of discussion, and tq determine whether it was the intention of congress to limit these statutes to the courts of the United States; or, if that was not the intention, whether congress has the constitutional power to make them binding upon the state courts, since, under the decision in *Rheinstrom v. Cone, supra,*the assignment, if unstamped at the date of its execution, was not invalid unless the proper stamp was omitted with the intent to defraud the provisions of the act. Although the assignment,, when offered in evidence, was duly stamped, yet there was some slight evidence in favor of the presumption that the stamp was not on the assignment when the plaintiff received it from the insured. And, this being so, the further question arises upon which party was the burden of showing that, even if the stamp was omitted in the first instance, this was not done with a fraudulent intent. In *Rheinstrom v. Cone,*the holder of the note voluntarily as*135sumed tbe burden of showing that tbe omission to stamp was not with tbe intent to evade tbe revenue law; yet tbe Chief Justice remarks in that case, that probably no presumption of fraudulent intent would arise from tbe mere omission to affix tbe proper stamp. And, upon a fuller consideration of tbe question, we are satisfied that this is a correct view of tbe law upon tbe subject. And this conclusion is founded upon tbe considerations suggested by the Chief Justice in tbe case- last mentioned, viz.: that this enactment is highly penal in its character and must therefore receive a strict construction, and that tbe presumption of guilt will not be made from a state of facts entirely consistent with innocence. It is obvious that a party may omit to stamp an instrument from mere mistake or inadvertance, and therefore tbe fact that tbe instrument is not stamped when issued, is not a circumstance from which fraud or an inference unfavorable to a party can be justly assumed. Such, we understand, likewise, to be tbe effect of tbe decisions in *Green v. Holway, supra,*and *Hanford v. Obrecht,*49 Ill., 146.

It is proper in this connection to make a remark upon the case of *John v. The State,*23 Wis., 504. There a party was indicted for forging an indorsement upon a draft. After conviction a motion in arrest of judgment was made upon tbe ground that there was no allegation that tbe draft was stamped. This court thought tbe motion should have been sustained for tbe reason that it did not appear that tbe draft was of any validity. In tbe opinion, Mr. Justice Paine says that there can be no doubt that under tbe act of congress an unstamped draft is void. Our attention, however, was not called in that case to tbe decisions upon tbe act of congress, and to the fact that tbe words “ with intent to evade the provision of tbe act ” were connected with and qualified tbe clause declaring an unstamped instrument invalid. The broad language used by Mr. Justice Paine is, doubtless, incorrect, and needs some qualification.

But that such laws as We afe considering are to be strictly *136construed, is the language of all the authorities. See *Adams*u Bancroft, 3 Sumner R., 384. And, as in this case, there was no evidence offered to show that, if the assignment of the policy was unstamped when executed by the assignor, the stamp had been omitted with the intent to defraud the revenue law, there was no question of fact to be passed upon by the jury.

The last objection taken by the defendant, is that the judgment must be reversed for the reason that the charge of the court was not reduced to writing before it was given to the jury. The court told the jury that there was no proof in the case on the issues joined on the part of the defendant, and the assignment produced in court being duly stamped they oould not go behind to enquire when it was stamped, the presumption being that it was duly stamped within the law, that they must find a verdict for the plaintiff.

This was substantially nothing more than directing the jury to find for the plaintiff. We do not think such a direction is a charge within the meaning and intent of chapter 101, Laws, 1868.

It follows from these views that the judgment of the county court must be affirmed.

*By the Court.*Judgment affirmed.