
    LOYD R. HOOPS, plaintiff in error, v. ATKINS, DUNHAM & COMPANY, defendants in error.
    (Atlanta,
    June Term, 1870.)
    1. PLEADING—OBLIGATION TO PAY MONEY—IMMATERIAL VARIANCE.—When an instrument, in writing, containing a legal obligation to pay money, is sued upon, in an action of assumpsit, and is set forth in haec verba, or according to its tenor and effect, the declaration is not demurrable under our statute, though the instrument may be called a promissory note, when it is not such technically.
    2. EVIDENCE—DEFICIENT STAMP—ACT OF CONGRESS. —An obligation to pay $500', though in the form of a receipt, which is stamped with a two cent stamp, is not legally stamped. Under the Act of Congress, it should be stamped with tweny-five cents before it is admitted in evidence.
    Pleadings. Stamps. Before Judge Johnson. Muscogee Superior Court. February Term, 1870.
    Atkins, Dunham & Company, in a regular action of assumpsit against Hoops, averred that Hoops owed them $500 00 for that, on the 19th of February, 1867, PIoops made and delivered to them “a certain instrument in writing, commonly called a promissory note, the date thereof is the day and year aforesaid, (and which is now here to the Court shown,) whereby the said Hoops acknowledged to have received of your petitioners, on said day, the sum of $500 00, money loaned him to complete the payment and purchase for *telegraph line from Apalachicola to Marianna. By means whereof,” etc.
    
      Hoop’s counsel demurred to the declaration upon the ground that said described paper was but a receipt, had none of the elements of a promissory note, and was no promise to pay. The demurrer was overruled, and the cause went to trial. Plaintiff’s counsel tendered in evidence, a paper, in these words:
    “Apalachicola, March 3d, 1867.
    Received of Atkins, Dunham & Company, Four Hundred Dollars, money loaned me to complete the purchase of a telegraph line from Apalachicola to Marianna. D. R. Hoops.”
    It was stamped with a two-cent revenue stamp only. It was objected to, because said stamp showed it was intended only for a receipt, and because it was insufficiently stamped for a note. (No notice was taken of the variance as to date.) The Court overruled the objection, and the paper was read as evidence. The jury found for plaintiffs $500 00, with interest and costs. Hoop’s counsel say the Court erred in overruling said demurrer, and in admitting said paper as evidence.
    R. J. Moses, for plaintiff in error.
    Peabody & Brannon, for defendants.
    
      
      ACT OF CONGRES-S—AUTHORITY TO PRESCRIBE RULES OF EVIDENCE FOR A STATE COURT.—See foot-notes to Green v. Lowry, 38 Ga. 548; Alexander v. Leith, 39 Ga. 180.
      “Congress has power to levy and collect taxes by requiring revenue stamps to be placed upon certain written instruments, and has power to prescribe a punishment for the failure or refusal to comply with that requirement and to provide that such instruments shall not, unless stamped, be admissible as evidence in the federal courts. It has, however, no power to prescribe rules of evidence for a state court, and therefore'the act of congress which declares that certain written instruments shall not be received in evidence in any court until stamped as required by the act, is to be understood as applicable to the federal courts only.” Small v. Slocumb, 112 Ga. 279, 37 S. E. Rep. 481. The court, at page 287, said: “There are other cases to be found in the reports where the construction of the acts was under consideration, but where no question was made as to the applicability of the acts of congress to state courts or as to the power of congress in this regard. Among these are the cases of Green v. Lowry, 38 Ga. 548; Alexander v. Leith, 39 Ga. 180; Hoops v. Atkins, 41 Ga. 109; Kile v. Johnson, 48 Ga. 189; as are also such Alabama, Texas and Wisconsin cases upon the subject as we have been able to find. These cases are not authority on the question as to whether the stamp act of congress applies to state courts or only to federal courts, or as to whether it is within the power of congress to make such an act applicable to state courts. These questions were not made and were not decided.”
    
   By the Court—

BROWN, C. J.,

delivering the opinion.

Section 3256, of the Revised Code, declares that, “Ordinary suits in the Superior Court, shall be by petition to the Court, signed by plaintiff, or his counsel, plainly, fully, and distinctly, setting forth his charge or demand; and no want of form shall be cause of delay if this article is substantially complied with.” In the case at bar, the plaintiffs set forth the instrument in writing, upon which the action was founded, according to its tenor and effect, correctly. But they called it a promissory note. And the declaration was demurred to, on the ground that it was not a promissory note. The Court below held, that, though it might not be a promissory *note, it was an obligation to pay money, that it was sufficiently described, that the cause of action was plainly and distinctly set forth in conformity to the statute, and adjudged that the demurrer be overruled. And that decision is assigned as error.

We do not think this instrument is, in the legal sense, a promissory note, (see Revised Code, section 1732,) and we admit that, under the common law rules of pleading, the declaration was demurrable. But we think it was sufficient, under our Code. It plainly and distinctly set forth the cause of action, and that is all that is 'required. The fact that the pleader called it a promissory note makes no difference. As it is correctly set forth, and contains an obligation to pay money, we hold that plaintiff may recover upon it according to its legal effect, no matter' what it may be called in the declaration. It is not for us to decide, whether this change in the common law rule of pleading is wise or unwise. That is a question for the Legislature. It is enough for us, to reply to the objector; ita lex scripta est. This is only an objection to the form of the declaration, and “no want of form shall be cause of delay,” if the statute is substantially complied with.

Upon the other point made by the bill of exceptions, we think the Court below erred. The' obligation was in the form of a receipt. But it was .in legal effect, an obligation to pay $500 00, money loaned. It was stamped with a two-cent revenue stamp. The tax required on such an instrument is five cents on every $100 00. Section 2, Brightley’s Digest,-page 269; the Act of Congress, approved 13th July, 1866; 14 Statutes at large, page 143, is explicit, that “no deed, instrument, document, writing, or paper, required by law to be stamped, which has been signed, or issued, without being duly stamped, or with a deficient stamp; nor any copy thereof, shall be recorded, or admitted, or used as evidence, in any Court, until a legal stamp, or stamps, denoting the amount of tax, shall have been affixed thereto, as prescribed by • law.” This instrument was stamped with a deficient stamp; and the Court should have required it to be ’^stamped with a legal stamp, or stamps, denoting the amount of the tax, which the Act of Congress requires, before he permitted it to go in evidence.

Judgment reversed.  