Cox v. Jones

McCay, Judge.

1. The act of congress of 1866, United States statutes, volume xiv., page 141, in express terms provides that all official papers issued by United States or state officers, shall be exempt from the stamp tax. We think letters of administration and certificates of records, come within the very terms of the act, and are not, therefore, liable to the stamp tax.’

2. The act of congress providing for the authentication of the records of any state for use as evidence in another, contemplates, it is true, that the court shall have a clerk and a judge. But there is nothing in this act which makes it necessary that these officers be the same persons. The implication is, perhaps, a clear one, that the court shall be a court of record, as this seems to follow from the existence of a clerk-It has been often decided that where, by the law organizing the court, the judge is ex offiaio the clerk, as is common, especially in probate courts, the certificate setting forth these facts, and signed by the judge, is sufficient: 4 Day Rep., 363 ; 2 Vermont Rep., 573, 574. There are decisions to the effect that the law of the State organizing the court, must, in cases of statutory courts, be produced: 3 Wend., 263; 7 Wend., 435. But there are many authorities the other way : Ripple vs. Ripple, 1 Rawle, 386; Thomas vs. Tanner, 6 Monroe, 53; 4 Philip’s Ev., (Cowan,) 61, 62, 71, 77; and we think this latter view most consistent with principle, since it facilitates the operation of the constitutional provision to give full faith to the records and judicial proceedings of other states. Prima fade the certificate of the judge of the court, as to its powers and the mode of its organization, may well be accepted for true. If the fact be different, it seems to us that the burden of producing the law ought, in such cases, to be on the other party: 4 Philipp’s Ev., Cowan’s notes, 108 to 110, 126, 137, 325, 326.

3. Whether this writing be a promissory note or not, is not material, under section 2791 of the Code. That section provides that any note, bill or other paper, payable on demand, is due immediately. If it be due, why should it not be sued ? The suit is a demand.

4. The facts in this record do not, in our opinion, present the question made in the argument, upon the validity of the paper for want of a stamp at the time of its making. Under our law, all pleas in actions on contracts must be under oath. There was no plea of the invalidity of this contract by reason of the intent to defraud the revenue. The act of issuing the paper was an act of the defendant,'and it was his duty to see to it that it was duly stamped. He knows precisely the motive of the parties in leaving it off, and if he desired to attack the paper on this ground, it was his business, under our law, to plead, it under his oath. The question really made is, however, simply a question of the right of the plaintiff, under the supervision of the court, to affix the stamp. When the stamp is thus affixed, the paper is still open to attack. It would be absurd to say that a stamp affixed, even in presence of the collector on the oath of the party, would make valid a paper void at its issue, or that the refusal of the collector to stamp it would render it invalid, if it was issued without an intent to defraud the revenue. The question of intent is one of fact for the jury, and neither a collector or the judge can decide it. Under our view of the act of congress, the duty and the right of the court is to protect the government by seeing to it that the stamp is affixed before the parties use the paper as evidence on the trial. The law simply says that no paper, etc., shall be used as evidence in any court until the stamp is affixed according to law. It will be noticed, too, that the act does not say that if (the stamp) shall be canceled. Whether this is an accidental omission or not, we cannot say. It is sufficient that it is not required.

5. Upon the question of fact — of fraud — the verdict, of a certainty, has a plenty of evidence to sustain it. The evidence of fraud is strong, and it would be usurping the province of the jury for us to undertake to declare the judge in error for refusing to disturb it.

Judgment affirmed.