$ 124. There must be express proof that the stainp was omitted with the intent to evade the act, in order to invalidate the instrument. The section of the stamp act declaring invalid the instrument, and subjecting to a penalty of fifty dollars every person who makes, signs, accepts, or issues a bill, note, or draft for money without a stamp, “with intent to evade the provisions of this act,” has been the subject of numerous adjudications : and it is distinctly settled by weight of authority, that the words "with intent to evade the provisions of this act,” are connected with and qualify both the clause declaring the instrument invalid, and that imposing the penalty of fifty dollars. “It is a fraudulent and not an accidental omission at which the penalty of the statute” is levied, says the United States Supreme Court, concurring in effect with the State authorities herein cited.” $ 125. A number of cases concede that there must be a fraudulent “intent to evade the provisions of the act,” in order for the instrument to be invalid, or the party to be subject to the penalty imposed; but maintain that the mere omission to put the proper stamp on the paper is presumptive evidence that such intent to evade the act existed, on the ground that every person must be presumed to know the law, and is chargeable with the duty to comply with it. But penal laws and laws concerning revenues must be strictly construed. Stamps are frequently omitted by inadvertence, or mistake; and to throw the burden of proving the negative proposition that he had no intent to evade the act upon the party would be a harshness of con 3 1 2 Harper v. Clark, 17 Ohio St., 190; Rhemstron v. Cone, 26 Wis., 163; Hitchcock v. Sawyer, 39 Vt., 412; Desmond v. Norris, 10 Allen, 250; Hallock v. Jaudin, 34 Cal., 167 ; Sawyer v. Parker, 57 Me., 39; Redlich v. Doll, 54 N. Y., 241 ; Green v. Halway, 101 Mass., 243. Campbell v. Wilcox, 10 Wall., 421. * Harper v. Clark, 17 Ohio, 190; Miller v. Morrow, 3 Cold., 587 ; Beebe v. Hutton, 47 Barb., 187; Howe v. Carpenter, 53 Barb., 382; Miller v. Larmon, 38 How. Pr. R., 417; Maynard v. Johnson, 2 Nev., 16; Wayman v. Torreyson, 4 Nev., 124. 3 struction unfamiliar to the liberal principles of the common law. And the cases which hold that the intent to evade the act must be affirmatively shown, in addition to the mere fact of omission, commend themselves to favor as embodying the better opinion of this question. It will, therefore, never avail to demur to an unstamped instrument. $ 126. Power of Congress.—The gravest question which the Federal stamp act can give rise to, is whether or not Congress has the power so to frame its laws for taxation as to prescribe the formalities of contracts, and records, of process to institute suits, and of evidence to sustain them. The power of Congress to raise revenue by taxa . tion is admitted; but still it must be remembered that the Federal and State governments can neither trench upon the independent existence of the other, and must, therefore, exercise the powers existing in each, in a manner consistent with the legitimate freedom of both within their proper spheres. The United States Supreme Court has, accordingly, held that a State can not tax the branches of the national banks, or their stocks and securities, or the salaries of government officers. And, reciprocally, the doctrine has been established by preponderance in numbers of cases, and by the weight of reason and authority, that the Federal government has no power, in the form of taxation or otherwise, to prescribe the formalities of con · Campbell v. Wilcox, 10 Wall., 421 ; Daily v. Coker, 33 Texas, 815; Moore v. Moore, 47 N. Y., 467 ; Green v. Holway, toi Mass., 243; Moore v. Quirk, 105 Mass., 49; Powell v. Feely, 49 Ill., 143; U. S. Express Co. v. Haines, 48 Ill., 248; Craig v. Dimock, 47 III., 308 ; Morris v. McMorris, 44 Miss., 441; Davis v. Richardson, 45 Miss., 499; Hallock v. Jaudin, 34 Cal., 167 ; Mitchell v. Mitchell, 32 Iowa, 421, overruling former cases in order to conform with decisions of Supreme Court of U S. (see former case of Muscatine v. Sterneman, 30 Iowa, 526); Trull v. Meneton, 12 Allen, 396; Lynch v. Morse, 97 Mass., 458; Sawyer v. Parker, 57. Me., 39; Whiteman v. Sheckle, 43 Mo., 537 ; McGovern v. Hoesback, 53 Penn. St., 177. · Campbell v. Wilcox, supra. * McCullough v. State of Maryland, 4 Wheat., 316; Weston v. City of Charleston, 2 Peters, 442; Dobbins v. Com’rs of Erie, 16 Peters, 435. tracts, records, process, or evidence ; and that in so far as the stamp act of Congress, or any other act, undertakes so to do, it is unconstitutional and void.' They might, therefore, be admitted as evidence in State courts, although unstamped. But Congress has power to establish the rules of evidence in the Federal courts, and also to provide appropriate remedies by fine or imprisonment for the enforcement of its revenue laws. § 127. It has been held that the United States internal revenue laws were not in operation in the Confederate States during the war between them and the United States, and that it was, therefore, unnecessary to stamp promissory notes made during the war, in order to give them validity. Craig v. Dimock, 47 III., 308 ; Latham v. Smith, 45 Ill., 29; Bumpass v. Taggart, 26 Ark., 398; Davis v. Richardson, 45 Miss., 499; Hunter v. Cobb, 1 Bush (Ky.), 239. * Craig v. Dimock, 47 Ill., 308 ; Clemens v. Conrad, 19 Mich., 170. CHAPTER V. IRREGULAR, AMBIGUOUS, AND FICTITIOUS INSTRUMENTS, AND INSTRUMENTS IN BLANK. SECTION I. IRREGULAR AND AMBIGUOUS INSTRUMENTS. $ 128. Same persons as different parties.-Ordinarily, as we have already seen, a bill of exchange comprises three separate and distinct parties, a drawer, a drawee, and a payee. But sometimes the drawer and payee are the same person, as where the drawer expresses the bill to be payable to himself only; or to himself or order. And in such case when indorsed, it becomes payable to order, or bearer, as the case may be. There is no doubt that there may be a bill to which only one individual is a party, as where the drawer draws a bill upon himself, payable to his own order ;' and the same person may be drawer, payee, and acceptor. The drawer may also draw a bill upon himself, payable to the order of a third party. But in all cases where the a * Rice v. Hogan, 8 Dana, 134; Woods v. Ridley, u Humph., 194; Hall v. Shorter, 46 Ala., 453. · Harvey v. Kay, 9 Barn. & Cres., 364; Planters' Bank v. Evans, 36 Texas, 592; Walton v. Williams, 44 Ala., 347 ; Randolph v. Parish, 9 Porter, 76; Chitty on Bills (13 Am. ed.) (*25], 33 ; Byles (Sharswood's ed.) [*89], 185. : As in Lovejoy v. Spafford, 3 Otto (93 U. S.), 430. 3 *Roach v. Ostler, 1 Man. & Ry., 120; Dehers v. Harriott, 1 Shower, 163 (1691); Robinson v. Bland, 2 Burr., 1077 (1760); Mayor v. Hammond, Chitty, Jr., 1423; Harvey v. Kay, 9 B. & C., 364; French v. Gordon, 10 Kans., 370 Planters' Bank v. Evans, 36 Texas, 592. In this case suit was brought by an indorsee against the maker of the following paper: “Ten months after date pay to the order of myself, thirty-nine hundred dollars, for value received, and charge to account of yours, H. E.' To M. C. & Co., New Orleans, La.”; which instru 3 drawer and drawee are the same person, the instrument, although it be declared upon as a bill, may be regarded as in legal effect a promissory note; in which case the drawer will be bound without notice of dishonor ;' or what is the same as a promissory note, it may be regarded as an accepted bill, the drawer's engagement that he himself, who is the drawee also, will pay it, being equivalent to acceptance.' A third party writing his name across the face of such a paper, could not be the acceptor, because not the drawee, and would be regarded as an indorser. 3 In practice, it is usual to declare upon such instruments as bills of exchange, not admitting the identity of the drawer and drawee. And their identity, as it seems, must 4 be proved by the party alleging it. Where an agent draws a bill upon his principal by his authority, and for money obtained and used in his business, the drawer and drawee, it has been held, may be treated as in fact the same party, and held without demand or notice.6 $ 129. Where a copartnership carries on business at two places, and at one place draws a bill upon the firm at another, the drawer and drawee being the same, the bill may be treated as a promissory note, or as a bill at the holder's a ment was accepted by M. C. & Co., and bore the indorsement in blank of the maker and payee. Held (1) that it was optional with the indorsee, either to treat this instrument as a bill of exchange, and sue the drawer and the acceptor together, or to treat it as a promissory note, and sue the maker alone. Held further (2), that such an instrument, when delivered to the drawee, imports that it is not drawn against funds of the drawer, in the hands of the drawee. And as the indorsee acquired the instrument before maturity, it is further held (3) that no defence was presented by an answer which alleged that the defendant had settled it with M. C. & Co., the drawees, without notice of its transfer to the plaintiff (Evans, P. J., dissenting). Planters' Bank v. Evans, 36 Texas, 592. · Roach v. Ostler, 1 Man. & Ry., 120; Randolph v. Parish, 9 Porter (Ala.), 78; Wardens of St. James Church v. Moore, i Ind. (Carter), 289; Chicago R.R. Co. v. West, 37 Ind., 211 ; Planters’ Bank v. Evans, 36 Texas, 592; see Armfield v. Allport, 27 L. J. Exch., 42. Cunningham v. Wardwell, 3 Fairfax, 466 ; Planters' Bank v. Evans, 36 Texas, 592. • Walton v. Williams, 44 Ala., 347. * Roach v. Ostler, 1 Man. & Ry., 120; Harvey v. Kay, 9 Barn. & C., 364; Starke v. Cheeseman, Carthew, 509. • Cooper v. Poston, i Duval, 92. • Raymond v. Mann, 45 Texas, 301 (1876) 6 |