
    Vaughan vs. O’Brien.
    Where, at the time of executing promissory notes, the maker authorized and directed his agent to affix the proper stamps thereto, and to cancel the same; but such agent, through inadvertence and without any intent to evade the provisions of the revenue law, or to defraud the government of tie stamp duty, neglected to affix the stamps, for several months; Held that the omission to affix the proper stamps, at the date of the notes, did not avoid the notes.
    A judgment rendered by a justice of the peace, on a dilatory plea, viz., upon an issue as to the misjoinder of parties, although it terminates the action, does not affect the right of action on the merits; nor can it be set up as a bar to a subsequent action for the same cause.
    
      Where a judgment is reversed, on appeal, upon technical grounds not involving the merits, the action constitutes no bar to a second action for the same demands.
    A simple judgment of reversal has the same effect, in that action, as a judgment of nonsuit. And where the ground of reversal does not appear, the onus of proof is on the party who, in a subsequent suit, relies upon the adjudication as a bar. He must make it appear that the precise point was considered and passed upon in the former suit.
    APPEAL by the defendant from a judgment entered upon the report of a referee.
    The plaintiff, by his complaint, claimed to recover, 1st. On a promissory note for $211.16, dated November 7, 1867, payable one day after date; 2d. On a due-bill for $20, of the same date with the note; and 3d. $50 for work, labor and services.
    The defendant, by his answer, claimed and insisted that the note was void because not duly stamped, in accordance with the United States internal revenue act. He also averred payment and set-off, and a former suit, in bar.
    The referee found that the notes were not invalid for the cause alleged. That there was no stamp to either of the notes, at the time they were executed; but that the defendant then authorized his agent, Mr. Wendell, to affix the required amount of stamps and to cancel the stamps. That the omission to affix and cancel the stamps occurred through inadvertence or mistake, and without any intent to evade the provisions of the revenue laws, or to defraud the government of the stamp duty.
    The referee also found that there was a former suit brought by the defendant, O’Brien, in a justice’s court, against the plaintiff, Vaughan, and another, wherein said Vaughan set up in his separate answer, as a defense, the claim for work, labor and services referred to in his complaint in this action, and denied that he and his co-defendant were jointly interested in the' matters of such suit; and that judgment in that suit was rendered on the issue of -misjoinder, only. That there was also another action between the parties to this action, before a justice of the peace, wherein the present plaintiff recovered a judgment against the present defendant, for the identical cause of action On which this suit is founded. But that such judgment was reversed by the county court, on appeal taken by the defendant.
    The referee awarded judgment in favor of the plaintiff, for $132.60, with costs.
    
      A. H. Ayres, for the appellant.
    
      J. D. Wendell, for the respondent.
   By the Court, Bookes, J..

The appellant’s counsel raised two questions on this appeal: 1st. That the notes on which the recovery was allowed were void, because not stamped pursuant to the provisions of the United States internal revenue act; and 2d. That the action was barred by the decision and adjudication on the appeal in the county court.

I. It was made a question of fact before the referee, whether the defendant authorized and directed Mr. Wendell to stamp the papers, as the law required. There was a conflict of evidence on this point, and the referee, who saw the witnesses and heard them testify, found that such authority and direction were given. Sor can it with any propriety be said, after reading the evidence returned on this appeal, that he found incorrectly, or against the evidence, in that regard. It must, therefore, now stand as a well founded fact in the case, that Mr. Wendell was authorized and directed to affix the proper stamps to the paper, and to cancel them. This he ultimately did- do, but not until after several months had elapsed. But it is further found, on sufficient evidence, that the omission to affix and cancel the stamps during this period, was through inadvertence, and without any intent to evade thé provisions of the revenue law, or to defraud the government of stamp duty. Under this state of facts, ! am unhesitatingly of the opinion that the papers were properly held to he well stamped, and valid against the objections raised. Mr. Wendell testified, in substance, that the defendant, when the notes were drawn, directed him to get stamps and stamp them; that he had no stamps at the office; that he placed the notes in his drawer, because some one came in, at the time, and he neglected to go to the bank and get the stamps; and after that, it was forgotten; and further, that he did not neglect to put on the stamps to defraud the government. Had he gone out immediately and procured the stamps, and affixed them to the papers, and canceled them, as he was authorized and directed to do, these proceedings would have been quite unobjectionable. The delay found, in this case, occurring through inadvertence, should not change the rights of the parties. Having authorized and directed the act, the defendant' should not afterwards be allowed to gainsay it. ' But it has been held, repeatedly, that the omission to affix a proper stamp to an instrument does not avoid it; unless such omission was with intent to evade the provisions of the law. (29 How. 29. 47 Barb. 187. 50 id. 302. 53 id. 382.) It was said, in the last case cited, that the invalidity of the instrument is made to depend upon the existence of the intent to evade the act. The case of Platt v. Broach, (36 How. Pr. 188,) principally relied upon by the appellant’s counsel, stands very differently from the present, on the facts. The objection urged, that the notes were invalidated because not properly stamped, is not, in my judgment, well taken.

I! Was this action barred by the former suit ? It was not barred, certainly, by the judgment of the justice rendered on the issue of the misjoinder; not even as to the claim for the work, labor and services. That judgment was rendered on an issue raised by a dilatory plea. It terminated that action, but did not affect the right of action on the merits. As regards the suit wherein a recovery was had before the justice, by the present plaintiff against the present defendant, and for the same causes of action presented in this suit, the judgment of the justice was reversed by the county court, on appeal taken by the defendant. If reversed on technical grounds, not involving the merits, that prosecution constituted no bar to this second action for the same demands. (4 Wend. 95. 8 id. 10. 3 Hill, 322, 328.) Otherwise, in case the judgment of reversal was rendered on the ground that the plaintiff had no right of action, at all, on the merits. In this case, the ground of reversal does not appear. True, it is stated that one ground of error alleged in the notice of appeal was the omission to stamp the larger note. But it does not appear that the reversal of the judgment was based on such omission.

All we have before us is, that the judgment of the justice, for some reason not here disclosed, was held to be erroneous, and was therefore reversed, and thereafter to be held for nought. The judgment of reversal does not purport to be a judgment on" the merits, as to the claims in litigation. The decision may have been put on the merits. On the other hand, the reversal may bar when placed on technical grounds merely. How we are asked to infer that the judgment was pronounced on the merits; that is, to infer that the adjudication proceeded on a particular ground, and basing our conclusion upon such inference, to hold the adjudication conclusive. As I understand the rules, “a particular ground of adjudication can never be inferred and relied upon as conclusive,” to bar a right of action. A judgment is no evidence of a matter to be inferred from it by argument. The rule is, that it must clearly and distinctly appear from the record, or from proof aliunde the record when such proof is admissible, that the particular ground urged was considered and passed upon by the court, in the former suit, or the adjudication will not operate as a bar in a subsequent action. The onus of proof, too, in such case, is on the party who relies upon the adjudication as a bar, (10 Wend. 60-84; 8 id. 91;) and he must make it appear that the, precise point was considered and passed upon in the former suit. The case at bar is not brought within these principles.

[Schenectady General Teem,

January 4, 1870.

But the judgment here relied on as a bar is one of simple reversal. Its effect, in that action, was the. same as a nonsuit. It does not appear that the adjudication was on the merits. For aught that appears before us, the merits were not considered—certainly it does not appear that they were. It lay with the party urging the point, clearly and distinctly to show that fact, and on that subject either prove the record, or otherwise. We can no more infer, that the reversal of the former judgment was on the merits than that it was on technical grounds in no way involving the merits. So it is laid down in Qowen Hills Notes, that the simple reversal of a judgment proves nothing but its own correctness; that it operates no further than to nullify what has been done, and in other respects, the parties are generally left by it in the same situation, as to their rights and remedies touching the matter in controversy, as if no such judgment had ever existed. (35 How. Pr. 350, and cases cited.)

We are of the opinion that the record in this case discloses no error; hence the judgment should be affirmed, with costs.

Judgment affirmed.-

Bosehram, JPotter and Boches, Justices.]  