Trull v. Moulton , 94 Mass. 396 ( 1866 )

Chapman, J.

In each of these cases the plaintiff declares on a promissory note, a copy of which is annexed to the declaration. In each case the defendant demurs to the declaration, and assigns for cause of demurrer “ that the note which is therein declared upon has no internal revenue stamp upon it.” This demurrer is bad.

1. If we understand the averment to refer to the note, and not to the copy thereof which is annexed to the declaration, as we must if we construe it literally, the reference is to something dehors the record, and not apparent upon it. Such reference must be made by averment, and not by demurrer; for a demurrer shows nothing but what is on the face of the record.

2. If we are to understand it as referring to the copy of the note, it is not a valid cause of demurrer, because the revenue stamp is not a part of the contract, and therefore need not be copied.

3. In order to affect the validity of the note, it should be averred that the stamp was fraudulently omitted on the note; Desmond v. Norris, 10 Allen, 250 ; and this cannot be done by demurrer. Judgment for the plaintiffs affirmed.