Whigham v. Pickett

PECK, C. J. This was a suit in the circuit court of [143] Barbour county, and founded upon a promissory note, made in tbe year 1866, and not stamped at tbe time it was made. It was offered to be read to tbe jury in that condition, and was rejected on the objection of the appellants, defendants in the court below. The plaintiff then, against the objection of the defendants, obtained the leave of the court to stamp the note in the presence of the court, and after it was so stamped, again offered to read the note to the jury. The defendants objected, their objection was overruled, the note was read to the jury, and the defendants excepted. These objections were reserved by a bill of exceptions signed and sealed, at the instance of the defendants. The evidence is all set out in the bill of exceptions, which is substantially as above stated. There is no evidence that the note at the time it was made, was left unstamped with the intent to defraud the government of its revenue. The note, therefore, is not void, but could not be used as evidence, without a proper stamp. By the act of the congress of the United States, entitled “ An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,” approved June 30th, 1864, it is provided in the 163d section of said act, that notes unstamped, may be stamped in open court, and thus stamped, may be used as evidence on the trial, provided such notes were made before the passage of said act; but it does not provide for notes made after the passage of said act, if left unstamped at the time of their execution ; such notes can only be stamped under the 158th section of said act, which provides that they may be stamped by the collector of internal revenue of the district where they were made. Such notes are only declared void, if made to defraud the revenue. As there is no evidence in the transcript, that this note was made for that purpose, it will not be presumed it was so made, but it must be proved as any other fraud is proved. As this note, therefore, may be made available, as evidence, by having it thus stamped, and to give the plaintiff an opportunity to have it done, if he shall desire to .do so, the judgment below will be reversed, and [144] the cause remanded. If the note had been made before the passage of said act, the ruling of the court below would: have been right, on the authority of the case of Blount v. Bates, 40 Ala. 470. Both the charge given, and the charge asked, should have been refused. The first, because the note was improperly permitted to be read to the jury, or the stamp put upon it, in the presence of the court. The second, the charge asked, should have been denied, because it asked the court to charge the jury, that the note was void, without any evidence that the note was left unstamped at the time it was made, with the intent to defraud the revenue of the government. Let the judgment of the court below be reversed, at the costs of the appellee, and remanded for another trial.