Timp v. Dockham

LyoN, J. This is an action to recover tbe possession of certain personal property. Tbe defendant claims to bold tbe same by virtue of a chattel mortgage thereon executed by tbe plaintiff. On tbe trial, tbe circuit judge sustained an objection to tbe admissibility of a certified copy of tbe mortgage as evidence, because it failed to show that tbe original was duly stamped as required by tbe revenue laws of tbe United States, and refused to permit tbe defendant to show that tbe original mortgage was legally stamped when tbe same was executed. Tbe plaintiff bad a verdict and judgment, and tbe defendant appeals. Conceding that tbe chattel mortgage was not duly stamped, tbe question is, whether tbe certified copy thereof should have been rejected, without proof that tbe stamp was fraudulently omitted. [443] This question, has been decided by this court adversely to the ruling of the circuit judge, in the cases of Rheinstrom v. Cone, 26 Wis., 163; and Grant v. The Conn. Mutual Life Ins. Company, supra, p. 125. Many cases in other states sustaining these decisions are cited in the opinions by the Chief Justice in the former, and by Mr. Justice Cole in the latter ease. But it is urged by the counsel for plaintiff, that the act of Congress of July 13,1866, changes the law of 1865, so that the fraudulent intent, which alone rendered the unstamped instrument invalid under the law of 1865, has become entirely immaterial ; and that, as the law now stands, no unstamped instrument, which the law requires to be stamped, can be legally read in evidence in any court, no matter how innocently the stamp was omitted therefrom. The provisions of those two acts of congress applicable to the question, are contained in the opinion in Rheinstrom v. Cone; but that case was decided upon the act of 1865 alone. The case of Grant v. The Ins. Co. was, however, decided upon the law as it now stands, and is decisive of this case. That decision is abundantly sustained by the authorities cited in the opinion, and also by the decision of the supreme court of the United States, in the case of Campbell v. Wilcox, 10 Wall., 421. In the latter case, the plaintiff recovered a judgment in the circuit court on four unstamped promissory notes, all of which were made after the passage of the act of 1866. The judgment was affirmed, with ten per cent, damages, because the defense was without merit. Mr. Justice Field says, in the opinion delivered by him, that “ it is a fraudulent, and not an accidental, omission, at which the penalty of the statute is levied.” He was speaking of the act of 1866 when he used this language. Several of the cases cited in the opinions in the two eases in this court above mentioned, hold that the revenue laws of congress, in so far as they prescribe a rule of evidence, have no force in a state court; that their operation in that respect is [444] confined to the federal courts. We do not decide whether this is, or is not, the correct doctrine. The question is an open one in this state, to be determined when a proper case shall arise. By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.