1. Under the Act of July 13, 1866, 14 Stat. at Large 142, which
requires promissory notes to be stamped, making them void only when
the stamp is omitted with intent to defraud the government of the
stamp duty, a fraudulent omission cannot be taken advantage of on
demurrer.
2. An averment in a declaration that the defendants had made and
delivered to the plaintiffs their promissory notes implies that the
instruments were at the time in the form and condition required by
law.
3. The filing of a plea to the merits after a demurrer is
overruled operates as a waiver of the demurrer.
4. Judgment affirmed with 10 percent damages where a party
brought a writ of error here denying such points as those above
stated.
A statute of July 13, 1866, [
Footnote 1] enacts that any person who shall accept,
negotiate, or pay, or cause to be accepted, negotiated, or paid any
promissory note without the same's 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 4 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,
Page 77 U. S. 422
judgment was given in favor of the plaintiffs for $10,805. On
error, the only question was on the demurrer.
MR. JUSTICE FIELD delivered the opinion of the Court.
The only question in this case arises upon the demurrer to the
declaration. The action is upon four promissory notes of the
defendants, and the declaration contains the usual averments
according to the established precedents in such cases, but does not
aver that the notes were stamped as required by the act of Congress
either at their date or at any subsequent time. The demurrer is
general that the declaration does not set forth facts sufficient in
law to constitute a good cause of action, but the omission of an
averment in the particular mentioned constitutes the special ground
of objection presented in the brief of counsel.
To the objection there are several answers. In the first place,
the act of Congress which requires promissory notes and other
instruments to be stamped only declares that they "shall be deemed
invalid and of no effect" when the stamp is omitted "with intent to
evade the provisions" of the act -- that is, with intent to defraud
the government of the stamp duty. It is a fraudulent and not an
accidental omission at which the penalty of the statute is levied.
Such
Page 77 U. S. 423
fraudulent omission, if available at all to the maker of the
note, can only be set up by special plea or urged on the trial. It
cannot be taken advantage of on demurrer.
In the second place, if a stamp were essential to the validity
of paper of this kind, the averment in the declaration that the
defendants had made and delivered to the plaintiff their promissory
notes would imply that the instruments were at the time in the form
and condition required by law. It has been held that in a
declaration upon a contract some memorandum of which, under the
statute of frauds, must be in writing, a compliance with the
requisition of the statute is implied in the averment that the
contract was made, and that such compliance need not be
specifically stated, although it must be proved if denied by the
defendant. So in this case, the existence of a stamp upon the
notes, as in the case stated, the existence of a writing, is a
matter of evidence, and not of pleading. [
Footnote 2]
In the third place, the filing of a plea to the merits after the
demurrer was overruled operated as a waiver of the demurrer. The
pleading was thus abandoned, and ceased thenceforth to be a part of
the record. [
Footnote 3]
The defense is without merit, and the writ of error appears to
us to have been prosecuted merely for delay. The judgment will
therefore be
Affirmed with ten percent damages.
[
Footnote 1]
14 Stat. at Large 142, § 158, amending the Internal Revenue
Act of June 30, 1854.
[
Footnote 2]
1 Chitty, Pleadings 304.
[
Footnote 3]
Clearwater v.
Meredith, 1 Wall. 42;
Aurora
City v. West, 7 Wall. 92;
Young
v. Martin, 2 Wall. 354;
Brown v. Saratoga
Railroad Company, 18 N.Y. 495.
