
    Hannon and High v. Batte.
    Decided March 14th, 1817.
    i. Evidence — Negotiable Note — Statute.—Under the Act of 1812, ch. 2, § 18, 19, 20, a Note, negotiable at Bank, maybe given in evidence, if duly stamped, before it became payable, though not so stamped when it was executed.
    The Appellee instituted an action of Debt against the Appellants, as endorsers of a Note, made by one Vial in September 1815, for $600, negotiable at the Farmer’s Bank of Virginia, and protested for non-payment. Upon the plea of nil debent and issue, a Verdict was found for the plaintiff, subject to the Court’s opinion upon the following facts: that the Note was executed and endorsed on paper having only a ten cent stamp, without any intent on the part of the maker or endorsers to evade the duties imposed by law ; and was received by the plaintiff, without his perceiving the mistake as to the stamp; that, shortly af-terwards, and before the Note became payable, the plaintiff, discovering the mistake, procured the Note to be stamped with a twenty cent stamp, and apprized the defendants thereof; that the Note has now both the ten and the twenty cent stamps impressed upon it: and it w.as referred to the Court to decide, 1st. whether it was competent on the defendants to prove these facts in evidence; and 2dly, whether, upon this state of facts, the law be for the plaintiff or defendants.
    The Court gave Judgment for the plaintiff; from which the defendants appealed.
    Deigh for the Appellants; insisted that it was competent for them to give evidence of the facts above mentioned; and that, those facts being found as proved, the Daw .was for. them, *because the proper stamp should have been upon the paper before the Note was executed.
    May for the Appellee.
    The Court has no right to inquire when the Note was stamped. The Judge, at the trial, is to examine the Note, and determine by inspection whether it be duly stamped. This is clear, because the fact is never put in issue by the pleadings on either side. The Daw upon the subject merely prescribes a rule of evidence, to which the Court will attend. 
    
    2. There is nothing in the Act of Assembly,  which requires the stamp to be impressed before, or prohibits it after, the making of the Note; both which provisions are expressly made in the English Statutes. Our Act relates only to Notes, which may be collected or discounted at Bank. There is no danger of fraud as to these; because, without the stamp, the Note cannot possibly be either collected or discounted at the Banks; and if it be not intended for the one purpose or the other, a common Note without a stamp is sufficient. The legislature could never have intended, that an accident like this, without any imputation of fraud, should be totally irremediable. The Statutes of Great Britain, and of the United States provide that, in such cases, the Note may be stamped upon paying a penalty, which the Degislature here did not think proper to impose; because the people of Virginia, who pay all their taxes most honourably, and regard any evasion in this respect as base in the extreme, could not be suspected of a disposition to evade this paltry tax; especially that class on whom alone it fell. But this Act is manifestly drawn with very little precision, in the hurry, attendant on the close of a long session, in time of war. The Court will therefore adopt any fair construction of which it is susceptible, to promote justice. It is submitted, then, that the Stamp Master was bound to furnish stamps to any person, who paid the duty; that it was not for him to know whether the paper was executed, or not; and that it is sufficient, if, when the Note is offered at the trial, it ‘"be duly stamped.”
    3. The special Verdict finds, that the defendants had notice from the plaintiff, that a proper stamp had been subsequently ^impressed; and, for any thing appearing to the Court, they made no objection.
    
      
      See monographic note on "Bills, Notes and Checks" appended to Archer v. Ward,-9 Gratt. 622.
    
    
      
       Peake’s N. P. Rep. 173, Wright & al. v. Riley; Chitty on Bills, (Story’s Ed.) 47.
    
    
      
       Acts of 1812, ch. 2. § 18, 19, 20.
    
   March 14th, 1817.

JUDGE ROANE

reported the Court’s opinion, that the Judgment be affirmed.  