
    Schermerhorn vs. Burgess and others.
    Where a revenue stamp is omitted or left off a promissory note, at the time the note is made and delivered, by mistake, and without any Intent to evade the revenue act, the instrument is not, by reason of such omission, invalid in its inception.
    No stamp is necessary upon such a note, either for the purpose of its being used as evidence upon the trial, or otherwise, where the referee finds as a fact that the stamp was omitted without any intent to'defraud the government.
    There can bé no presumption of any fraudulent intent, against such a finding of fact.
    When an application to the collector, to have a stamp affixed to an instrument is not made by the makers of the instrument, but by another party having an interest therein, as the payee or holder of a note, or the like, the proper district in which the application is to be made is the district in which the party making it resides, and where the instrument is then held.
    
      The provision of the act of congress, declaring that where a party has not affixed a revenue stamp to an instrument, at the time of making or issuing, the same, “ and he or they, or any party having an-interest therein, shall be subsequently desirous of affixing such stamp to said instrument, lie or they shall appear before the collector,” &c., clearly refers to the party or parties “ desirous of affixing such stamp,” whether the maker or the party having an interest, other than the maker. He or they may appear and have the stamp affixed, by complying with the conditions.
    APPEAL from a judgment entered upon the report of a referee.
    The action was against the makers and indorsers of a promissory note for $3000, made by Charles Burgess and C. P. Burgess, and indorsed by W. J. Moses and E. Sheldon. The makers appeared and put in answers, setting up a defense in no way connected with the question of stamps upon the note, and on the trial abandoned the defense which they had set up in their answer. The indorsers answered separately, claiming that the note had been altered in its date, since it was indorsed, whereby they were discharged.
    On the production of the note before the referee, oh the trial, it was stamped with the requisite amount of United States internal revenue stamps canceled; but it appeared in evidence that they were placed thereon by direction of the plaintiff, and not of the defendants. The plaintiff, who resides in the 23d collection district, then procured the note to be properly stamped by the collector, and the penalty remitted, on proof being furnished that stamps were left off inadvertently. The note was then offered in evidence, and received with the indorsements of the collector. The makers applied for leave to amend their answer, so as to set up the defense that the note was not stamped, when issued. This was objected to by the plaintiff, but allowed by the referee. The defendants were sworn as witnesses, but made no claim that the stamps were omitted with a fraudulent intent.
    The referee found as a fact that the stamps were not omitted with any intent to defraud the government, or
    
      evade the provisions of the law; and reported in favor of the plaintiff, against the makers, for the full amount of the note, and as to the indorsers, dismissed "the complaint, with costs.
    The makers appealed.
    
      Geo. F. Danforth, for the appellants.
    
      A. P. Smith, for the respondent.
   By the Court, Johnson, J.

There is no merit in this appeal. The referee has found as a fact that the revenue stamp was not omitted or left off the note in question at the time it was made and delivered, with any intent to evade the provisions of the act of congress on that subject. It was not therefore invalid in its inception, by the very terms of the act of congress. ■ (Sess. Laws of 39th Congress, 148, Sehed. A, amending § 158 of act of June 13, 1864.) The same provision was also contained in the act of 1864. (Beebe v. Hutton, 47 Barb. 187. Vorebeck v. Roe, 50 id. 302.) I confess I do not see that any stamp was necessary upon the note in question, either for the purpose of its being used as evidence upon the trial or otherwise, in view of the express finding of the referee on the subject of the intention of the parties when the note was made and delivered. There can be no presumption of any fraudulent intent against the finding of fact. The note was not “ invalid and of no effect,” as it is not made so by the act, upon the facts found. It must have been, therefore, valid and effectual. As I understand the several acts of congress, it is nowhere provided that an instrument, which is not void, shall not be used in evidence by reason of its having no stamp upon it. A different view of this question seems to have been taken, however, by the court in Beebe v. Hutton, (supra.) The court in that case seems to have been of the opinion that even where an instrument was not invalid by reason of the omission to place the revenue stamp upon it, when executed, it was necessary that one should be affixed to it to render it competent evidence upon the trial. I do not concur in this view, but it is unnecessary 'to pass upon the question in this case. Here the revenue stamp had been affixed by the collector of internal revenue, and the proper indorsement made by him according to the act of congress when the stamp has been affixed by such officer, after the instrument has been made.

The objection taken to this by the defendants,’ counsel is that the stamp was not affixed by the proper collector.

The makers of the note, it appears, resided at the time of the making thereof, and still reside in the 24th collection district of the State, while the plaintiff, who procured the stamp to be affixed, resided in the 23d collection district, and still resides there. The stamp was affixed and the indorsement made by the collector of the district in which the plaintiff resided. The point taken is .that the application should have been made to the collector of the district in which the makers resided and where the note was made .and delivered.

The act of congress before referred to, provides that where the stamp has been omitted, at the time of making any instrument, the party making it, “ or any party having an interest therein,” may within a certain time apply to the collector “ of the proper district,” and have the stamp affixed upon the conditions prescribed. It is not declared which district is the proper one. That is left to inference and construction.

I am clearly of the opinion that when the application is not raadé by the makers of the instrument, but by another party having an interest therein, as payee, or holder of a note, or the like, the proper district in which the application is to be made, is in the district in which the party making it resides, and where the instrument is then held. It seems to me the collector of such district is the only one who has jurisdiction of the person applying, and of the instrument in his hands. If this view is correct there is no valid objection to the note, either as matter of evidence or as a valid instrument.

I am aware that it was held in Myers v. Smith, (48 Barb. 614,) that the only proper person to appear before the collector and make the application to have the stamp affixed, where it has been omitted at the time the instrument was made, was the maker of the instrument; and that where another person interested in such instrument desired to have the stamp affixed, he must procure the maker to appear before the collector and apply for and procure such stamping, or the stamp would be of no effect.

I do not so read the act. The language of the provision seems to me very plain, and to mean and express just the reverse of this interpretation. The provision is that where the party has not affixed the stamp at the time of making or issuing the instrument, “ and he or they or any party having an interest therein, shall be subsequently desirous of affixing such stamp to said instrument, he or they shall appear before the collector,” &e.

This clearly refers to the party or parties “ desirous of affixing such stamp,” whethqy the maker or the party having an interest other than the maker; he or they may appear and have the stamp affixed, by complying with the conditions. The maker might not be desirous of having it affixed, whether the stamp was omitted for the purpose of defrauding the revenue or by accident, mistake or inadvertence. He might prefer to subject' himself to the penalty rather than have the instrument validated'by the proper stamp. Hence it was highly proper to provide that any party interested in having the interest or obligation rendered prima facie valid, as well as valid in fact, and in law, and “ desirous of affixing the stamp,” might appear and procure such stamp to be affixed.

[Monroe General Term,

September 6, 1869.

This is the fair grammatical construction of the sentence. The ántecedent of “ he or they,” who may appear, is any party previously specified in the sentence who may be desirous of affixing the stamp for any reason. This interpretation is consistent with justice, and fairness to both parties, to an instrument, and I cannot doubt it was what was intended by the act.

The other construction puts it in the power of one party tó a note, or other instrument, to practice the greatest injustice against the other, and defeat at will the most equitable and meritorious obligation.

I do not think we should give a construction which must be productive of such consequences to the acts of any legislative body, where it is fairly susceptible of one quite the reverse. "We cannot presume that congress intended to favor the breaking of contracts and non-fulfillment of the pecuniary obligations by the maker with impunity, as a favored class, and we ought not so to interpret their acts, unless constrained by the clearest and most unequivocal expressions of such an intention.

The judgment is right, and should be affirmed.

E. D. Smith, Dwight and Johnson, Justices.]  