Omaha daily bee., 1898-08-11

courts a rule Of evidence regulating the ad-
instability Of unstamped documents. Bum
pass against Taggart, rs Ark. 39s, Z Am.
Rep. 500, Pagout against Richardson. 80 La.
Ann. 1885; Moore against Moore, a N. Y.
467, Z Am. Rep. 1856; Sporer against Eihet,
1 Hcisk. (Tenn.) 633; Crews against Farm
ers' bank, 81 Graft. CVa) 34s. The same
view is intimated in Carpenter against Smell
ling, % Mass. 452. On the other hand. there
are decisions unfolding the power Of con-
gress In this respect. The leading case Ia
CHARTERS, etc. Turnpike Co. against Nc
Namara, 70 Pa. st. 27S, 10 Am. Rep. 679, I
Alb. L. J. So.
Question of Intention.
The consideration OF this delicate question
OF conflict between federal and state au-
thority is avoided by those decisions which
hold that the act was not intended to in
validate unstamped instruments unless the
stamp was omitted with intent to evade the
act, and that a construction OF the terms OF
the act shows that the provision rendering
unstamped instrum ents inadmissible in evil
dence was intended to apply only to federal
courts. This view is maintained by Judge
Gray, now of the United States supreme
court. in an able and exhaustive opinion in
Green against Holway, 101 Massachusetts,,
Efo, D AIN. rep. 0dJ. lie tnere SHOWS tnaI all
the provisions OF the act of 1862 and its
amendments are consistent with the view
that a guilty intent in emitting the stamp
is necessary in order to render an unstampod
document void. This ruling, which is placed
beyond doubt by the decision of the United
States supreme court in Campbell against
Wilcox, 10 Wall. ~. 81 AL, is equally APP
plicable to the provisions of the present
stamp act in spite Of their confused charac-
ter. Section Z does not purport to invali-
date instruments unstamped, and section 10
clearly requires the presence of a guilty in
tent to have such an effect, while the pro-
visos to that section go further and show
that even when a stamp Is omitted with
wrongful intent 1t may afterwards, upon pay
ment of a penalty, be supplied, with the
effect Of validating the instrument. See
Foster against Holley, 40 Alabama 593. (The
headnote to this case Is misleading.)
That the provisions of the act of 1862
rendering unstamped instruments inadmissi-
BILE in evidence were not intended to apply
to the state courts is maintained in a large
number of other cases, of which we may
cite: McElvain against Mudd, Al Alabama
4SS, Am. Rep. LOG; Duffy against Hobson,
40 California 24O, 6 Am. Rep. GIL;
Griffin against Ranney, 80 Conn.
239; Forcheimer against Holly, IA Fla. 239;
Bowen against Byrne, So Ill. 467; Wallace
against Cravens, "a Ind. 534; Moore against
Quirk, 1O5 Mass. 40, Z Am. Rep. 499; BursOn
against Huntington, 81 Mich. Ais, 4 Am. Rep.
497; Davis against Richardson, As Miss. 499,
z Am. Rep. 1872; Haight against Grist, GA N.
Car. 739; Atkins against Plympton, A VT.
21; Weltner against Riggs, 3 W.. Va. 445.
From a note to the case of Emery against
Hobson, SO Me. 33, it appears that this
question arose in the case of Moore against
Mason, argued before the United States
supreme court at its October term in 1878,
when, the court being incomplete by reason
of a vacancy occasioned by the death OF
Chief Justice Chase, and the associated
justices being equally divided in opinion, no
conclusion was reached.
The contrary doctrine appears to have OBJ
tanned only in Nevada, Wayman against
Torreyson, 4 New. 1874; in Iowa, Hugus
against Stricken, 10 Iowa Ala; Mitchell
against Home Insurance Company, 80 Iowa
All; and in Pennsylvania, CHARTERS TIP. Co.
against Mcnamara, ~ Pa. st. 27S.
Burden of Proof.
The burden of establishing that the omis
sion of a stamp was with intent to evade
the provisions of the stamp act, and that
such omission has, therefore, the effect OF
lluNallldllnB the luSll uilielll, 10 utloh IL
party impeaching it. Whigham against
Pickett. AZ Ala. 14O; Dudley against Wells
IS Me. las; Desmond against Norris, II
Allen (Mass.) $50; Tobey against Chapman
10 Allen 1913; Waterbury against Me
MILAN, 46 Miss. 635; Baker against Baker
6 Lans. On. W 500; New Haven. etc, Co
against Quintard, 6 Abb. Pr, N. S. IN. Y.
1928; Grant against Conn. Nut. l.. ms. Co.
20 wis. 1876. But there is authority for
, contrary view. United States agains
:, Learned, / Abb. GU. 81 4s3. See also al
: article in 10 Am. l.. Reg. N. S. 4Sl.
: Where an instrument was innocently lef
n unstamped it was held in some states tina
q it might be read in evidence without aftixinI
= a stamp, and this seems to follow neces
sarily from the view that the prohibition a
to the admission of unstamped instrument
was applicable only to federal courts. Perry
man against Greenville, 81 Ala, 5O7; BoweI
I against Byrne, SIS Ill. 467; Emery agains
! Hobson, So Me. SO; Black against Woodward
80 Md. 1874. But in other cases the afixin
of a stamp at the time of trial has bee
required. Turner against State, As Ala. $40
Plessinger against Depuy, 25 Ind. 4l9
\ Waterbury against Mcmillan, As Miss. 635.
/ Even when an instrument sued on Is In
E, valid for want of a stamp, it appears thu
n n recovery may be had upon the origint
consideration for which the instrument wa
: given. Israel against Redding, 40 ii
s 1852; Humphreys against Wilson, AZ Mis-
r 32S; Wilson against Carey, 40 VT. 179,
Simple Rules.
The instruments subject to stamp dut
are set out in detail In SCHEDULE A. of II
q stamp act. In constituting a simili
If schedule the United States supreme cou
: said: ut is said that in many instance
e the statute refers to the same subject mo-
q than once, under different names, and wi
different rates of duty, and that emba
rassment in the construction of the statu
may arise from this cause. Thus a chez
y whether drawn upon a bank or an II
dividual, is in the nature and form Of
o inland bill of exchange, having a drawe
e a drawee, and usually a payee. . =
few simple rules will dispose of the mo
of the difficulties that may arise: First, i
m described in technical languae
or In terms especially descriptive of the
own character, are classed under that hea
TX and are not to be included In the gener
l. words of the statute. I'd. The words of Il
n statute are to be taken in the sense
is which they will be understood by that publ
g. in which they are to take effect. Scien
a and skill are not required in their interpr
lie tation, except where scientific or technic
= ..-I ga tn lIAktltNF 80 ~ :