attested promissory notes and others, in that attested notes are actionable for a longer period than those which are not attested.50 Under such a statute a note with an attestation is in fact a different legal contract from what it would be without it,51 and the attestation of a note not before witnessed, by a person who was not present at the signing, is a material alteration of the contract and destroys its validity.52 [200] F. Seals.53 The law merchant did not cover sealed instruments, and originally a seal was held to destroy the negotiability of a bill or note;54 and although such instruments still remained transferable at common law, subject to equities,55 their 50. See Limitation of Actions [25 Cyc 1040]. 51. Smith V. Dunham, 8 Pick. (Mass.) 246. 52. See Alteration of Instruments § 58. 53. Cross references: General rules, and sufficiency of see Seals [35 Cyc 1165]. Adding seal as material alteration see Alteration of Instruments § 64. Corporate seal see Corporations [10 Cyc 1004 et seq]. 54. U. S.-U. S. Bank v. Donnally, 8 Pet. 361, 8 L. ed. 974. Ala. Breitling v. Marx, 123 Ala. 222, 26 S 203; Sayre v. Lucas, 2 Stew. 259, 20 AmD 33. Ark.-Hanger v. Dodge, 24 Ark. 99. Oh.-Osborn v. Kistler, 35 Oh. St. Or.-Osborne v. Hubbard, 20 Or. $18, 25 P 1021, 11 LRA 833. Pa.-Sidle v. Anderson, 45 Pa. 464; Frevall v. Fitch 5 Whart. 325, 34 AmD 558; Folwell v. Beaver, 13 Serg. & R. 311; January v. Goodman, 1 Dall. 208, 1 L. ed. 103. S. C.-McLaughlin v. Braddy, 63 S. C. 433, 41 SE 523, 90 AmSR 681; Tucker v. English, 29 S. C. L. 673; Foster v. Floyd, 15 S. C. L. 159; Parks v. Duke, 13 S. C. L. 380; Parker v. Kennedy, 1 S. C. L. 398; Cunningham v. Smith, 5 S. C. Eq. 90. Vt.-Read v. Young, 1 D. Chipm. 244. W. Va.-Laidley v. Bright, 17 W. 214. Eng.-Glyn v. Baker, 13 East 509, 104 Reprint 468. Ont. Merchants Bank V. United Empire Club Co., 44 U. C. Q. B. 468; Wilson v. Gates, 16 U. C. Q. B. 278. [a] But in Georgia, independent of any statute, it has been held that such notes are negotiable by the custom of merchants. Porter v. McCollum, 15 Ga. 528. [b] A single bill, under seal, is not a note, but a specialty. Mann v. Sutton, 4 Rand. (25 Va.) 253. bank transfer was neither in form nor effect the transfer of a negotiable bill.56 The civil law, however, made no such distinction.57 An unsealed note is not converted into a sealed instrument by an indorsement under seal,58 or by the fact that it is secured by, and recited in, a sealed mortgage.5 But a note may be the sealed note of one maker and the unsealed note of the other,60 and it may be the sealed note of the maker and an unsealed note of the indorser before delivery."1 59 Statutes. The rule that a seal makes a bill or note nonnegotiable has been abrogated by statute in many of the United States,62 and the Negotiable Instruments Law expressly provides that the validOh.-Osborn v. Kistler, 35 Oh. St. an action by the indorsee (Conine v. [d] What is sealed instrument.- [e] Construction.-A promise in 55. Ala.-Muse V. Dantzler, 85 Ala. 359, 5 S 178. 99. Pa.-Hopkins v. Cumberland Valley R. Co., 3 Watts & S. 410; Wheeler v. Hughes, 1 Dall. 23, 1 L. ed. 20. Eng.-Turton v. Benson, 10 Mod. 445, 88 Reprint 803, 1 P. Wms. 496, 24 Reprint 488, Str. 240, 93 Reprint 498, 2 Vern. Ch. 764, 23 Reprint 1099; Coles v. Jones, 2 Vern. Ch. 692, 23 Reprint 1048; Hill v. Caillovel, 1 Ves. 122, 27 Reprint 931; Matthews v. Wallwyn, 4 Ves. Jr. 118, 31 Reprint 62, 18 ERC 243. 56. Sayre v. Lucas, 2 Stew. (Ala.) 259, 20 AmD 33 (statute formerly required indorsement for the transfer of a sealed bill payable to bearer); Gist v. Drakely, 2 Gill (Md.) 330, 41 AmD 426 (blank indorsement subject to explanation by parol evidence); Speer v. Post, 3 N. J. L. 585 (could not be transferred by blank indorsement). [a] An express contract was necessary to render the assignor liable to remote holders or even to his immediate assignee. Helfer v. Alden, 3 Minn, 332; Dilts v. Trimmer, 3 N. J. L. 951; Boylan v. Dickerson, 3 N. J. L. 430; Garretsie v. Van Ness, 2 N. J. L. 20, 2 AmD 333; Frevall v. Fitch, 5 Whart. (Pa.) 325, 34 AmD 558; Tucker v. English, 29 S. C. L. 673; Pratt v. Thomas, 20 S. C. L. 654; Parks v. Duke, 13 S. C. L. 380; Parker v. Kennedy, 1 S. C. L. 398. 57. Story Promissory N. § 55. Rand v. Dovey, 83 Pa. 280 (under a corporate seal); Ege v. Kyle, 2 Watts (Pa.) 222. 58. 59. Seymour v. Street, 5 Nebr. 85; Crouse v. McKee, 14 NYSt 158; Jackson v. Sackett, 7 Wend. (N. Y.) 94; Clarke v. Figes, 2 Stark. 234, 3 ECL 391. [a] Purchaser cannot assume contra.-But the purchaser under a mortgage which recites the notes. secured without execution of a seal cannot assume that they are without seal and therefore barred. Foster v. Jett, 74 Fed. 678, 20 CCA 670. 60. Hanger v. Dodge, 24 Ark, 205. 61. McLaughlin v. Braddy, 63 S. C. 433, 41 SE 523, 90 AmSR 681. 62. Ky.-Maxwell v. Goodrum, 10 Mich. McKinney Minn. Auerbach v. Le Sueur Mill N. Y.-New York Security, etc., Co. v. Storm, 81 Hun 33, 30 NYS 605. N. C. Salisbury First Nat. Bank v. Michael, 96 N. C. 53, 1 SE 855; Pate v. Brown, 85 N. C. 166. Del. Hall v. Hickman, 2 Del. Ch. Oh.-Osborn v. Kisler, 35 Oh. St. 99: Cushman v. Welsh, 19 Oh. St. Minn.-Helfer v. Alden, 3 Minn. 536; Bain v. Wilson, 10 Oh. St. 14; 318. 332. Miss.-Smith v. Clopton, 48 Miss. N. J.-Barrow v. Bispham, 11 N. [c] Sealed instruments have been held to be nonnegotiable (1) and as such not subject to days of grace (Skidmore v. Little, 4 Tex. 301), (2) and not within statutes permitting 595. N. Y.-Clute v. Robinson, 2 Johns. Avery v. Latimer, 14 Oh. 542; St. Clairsville Bank v. Smith, 5 Qh. 222. But such an instrument, although payable to bearer, can be transferred only by indorsement. Putnam V. Stewart, 1 Oh. Dec. (Reprint) 573, 10 WestJ 410. S. D.-Landauer V. Sioux Falls: Impr. Co., 10 S. D. 205, 72 NW 467. The [201] G. Stamps-1. Historical. For the purpose of raising revenue, taxes have been imposed at various times on the paper on which bills, notes, and other contracts are written. The acts imposing these taxes require revenue stamps in certain amounts to be impressed on or affixed to the paper of the instruments. The first stamp act in England affecting bills and notes was the act of 22 Geo III c 33, which has been followed by series of similar enactments. The first stamp act in the United States was that of 1797, repealed in 1802.65 In 1813,66 and again during the war between the states, resort was had to this method of raising revenue. first stamp act during the latter period was enacted in 1862,67 and repealed in 1872 as to bills and notes, and in 1883 as to checks.69 Most of the questions that have arisen in this country belong in large part to the act of 1862. The War Revenue Act of 1898 was repealed in 1901 and 1902, so far as bills and notes are concerned;70 but the War Revenue Act of 1914 fixes a tax on promissory notes and renewals thereof, of two cents for a sum not exceeding one hundred dollars and an additional two cents for each additional hundred dollars or fraction thereof.71 68 In England the act of 1870 applied to all bills and notes "drawn, or expressed to be payable, or acTex. Courand v. Vollmer, 31 Tex. 397. See Carter V. Wolfe, 1 Heisk. (Tenn.) 694. [a] Presence of seal does not destroy the character of the instrument as a note. New York Security, etc., Co. v. Storm, 81 Hun 33, 30 NYS 605. 63. St. Paul's Episcopal Church V. Fields, 81 Conn. 670, 72 A 145; Johnston's Est., 20 Pa. Dist. 831. 64. See Limitations of Actions [25 Cyc 1035]. "A negotiable promissory note under seal is a legal hybrid; but it is fully recognized in the law of this State. Such a note at common law would not have been a commercial paper, nor would it have been classed as a negotiable instrument. We treat it as a commercial paper, and apply to it all the incidents of a negotiable instrument. The custom of putting a seal upon a promissory note has come about, not through a desire on the part of those making and taking such papers to foreclose the question of consideration, but chiefly to make the period of the statute of limitations applicable thereto twenty years instead of six years. It would seem just and reasonable and highly expedient, therefore, that the presence of the seal on such instruments should have no higher effect than the parties using it intend that it should have, and should not give to it the effect of foreclosing the question of consideration." Lacey V. Hutchinson, 5 Ga. A. 865, 875, 64 SE 105. 65. 1 U. S. St. at L. 520 c 11, repealed by Act April 6, 1802. 66. 3 U. S. St. at L. 79 c 53. 67. 12 U. S. St. at L. 432. [a] Instrument payable in Confederate money; value of stamp.Where a note was made during this war for the payment of Confederate money and was lawfully stamped by the maker after the war, the value of the stamp required was properly estimated with reference to the real tually paid or indorsed or in any manner negotiated in the United Kingdom.'' 72 A new statute was enacted in 1891.73 In Canada the stamp act which once existed 74 was repealed;75 but under the War Revenue Act of 1915 a stamp tax is imposed on bills, checks, and notes.76 [§ 202] 2. Application of Statute in United States. The United States Stamp Act of 1862 and its amendments did not apply to a mere duebill,77 to the certification of a check,78 to the indorsement of a bill or a note,79 or to instruments made during the war within the lines of the Confederate States.80 Nor did the United States stamp acts require a fresh stamp on a new promise to take a stamped note out of the statute of limitations,s 81 on the mere alteration of the date of a note,82 or on a contemporaneous agreement securing and forming part) of a stamped note.s 83 The draft of a corporation officer on the corporation for wages was subject to the stamp law in force but might be stamped as a check rather than as a note.84 Generally such statutes did not apply to bills and notes made before their passage.8 85 [203] 3. Cancellation of Stamp. The United States stamp acts have provided for the cancellation of the stamps affixed, by the person affixing them writing his initials and the date thereon; but the mode of cancellation has been held not essential to the validity of the instrument.86 Under the act of 1862 it was held to be a sufficient cancellation if value of the note. Kile v. Johnson, dorser liable to subsequent holders. 48 Ga. 189. Plimley v. Westley, 2 Bing. N. Cas. 68. U. S. Rev. St. § 3418. 249, 29 ECL 523, 132 Reprint 98. 69. 22 U. S. St. at L. 488. 70. 31 U. S. St. at L. 938 c 806; 32 U. S. St. at L. 96 c 500. 71. Act Oct. 22, 1914 (38 U. S. St. at L. 745). 72. St. 33 & 34 Vict c 97. [a] Interest.-The amount for which a note is stamped need not include accruing interest. Israel v. Benjamin, 3 Campb. 40. Revenue V. 73. Speyer V. Inland [a] A promissory note of any kind, even though payable on demand or at sight, requires to be stamped with an ad valorem stamp under the first schedule of the Stamp Act of 1891. Oettinger v. Cohn, [1908] 1 K. B. 582. 74. Boustead v. Jeffs, 44 U. C. Q. B. 225; Ontario Bank v. Wilcox, 43 U. C. Q. B. 460; Chicago Third Nat. Bank v. Cosby, 43 U. C. Q. B. 58. See Hinton Electric Co. v. Montreal Bank, 9 B. C. 545, 23 CanLTOccNotes 292; Le Banque Nationale v. Sparks, 2 Ont. A. 112, 27 U. C. C. P. 320. [a] Amount.-See Roberts V. Vaughan, 11 Can. S. C. 273 (effect of failure to affix double amount). 75. Caughill v. Clarke, 3 Ont. 269. 76. Can. St. (1915) c 8 §§ 2, 3, 5, 12. 77. Jones v. Jones, 38 Cal. 584. Contra Jacquin v. Warren, 40 Ill. 459. [a] as So a mere order to pay money to an amount depending on future contingencies cannot be treated an instrument requiring a stamp, owing to the impossibility of fixing the rate of duty. Union Bank v. Kerr, 7 Md. 88. 78. Merchants Nat. Bank v. Boston State Nat. Bank, 10 Wall. (U. S.) 604, 19 L. ed. 1008. 79. Pugh v. McCormick, 14 Wall. (U. S.) 361, 20 L. ed. 789. [a] But in England a stamp was necessary on the indorsement of a nonnegotiable note to render the in [b] A waiver of demand and notice, etc., indorsed on a note did not require a stamp. Pugh v. McCormick, 14 Wall. (U. S.) 361, 20 L. ed. 789; Pacific Bank v. De Ro, 37 Cal. 538; Muscatine Nat. Bank v. Smalley, 30 Iowa 564; Guyther v. Bourg, 20 La. Ann. 157. 80. Susong v. Williams, 1 Heisk. (Tenn.) 625; Van Alstyne v. Sorley, 32 Tex. 518. [a] A promissory note made before any collection district was organized or stamps were prepared and placed on sale within the state, but after the passage of the Internal Revenue Act, is valid and may be read in evidence, although unstamped. McElvain v. Mudd, 44 Ala. 48, 4 AmR 106. 21. 81. Cook v. Shearman, 103 Mass. 82. 83. 135. Prather v. Zulauf, 38 Ind. 155. Bowker v. Goodwin, 7 Nev. [a] Affixing stamps to both.-It is legal to affix United States revenue stamps to a note, or to the mortgage executed to secure its payment, or to both, if the amount on both is sufficient. Cummings v. Saux, 30 La. Ann. 207; Garrish v. Hyman, 29 La. Ann. 28; Griffith v. Hershfield, 1 Mont. 66. 84. U. S. v. Isham, 17 Wall. (U. S.) 496, 21 L. ed. 728. 85. Whigham v. Pickett, 43 Ala. 140; Bayly v. McKnight, 19 La. Ann. 321; Garland V. Lane, 46 N. H. 245. But see Pugh v. McCormick, 14 Wall. (U. S.) 361, 20 L. ed. 789 (act of 1870). 86. Foster v. Holley, 49 Ala. 593; Union Agriculture, etc., Assoc. V. Neill, 31 Iowa 95; Robinson v. Lair, 31 Iowa 9; Schultz v. Herndon, 32 Tex. 390. [a] But stamps must be canceled in the manner provided by act of congress. Schuylkill Plush, etc., Co. v. Shappell, 11 Pa. Dist. 554, 26 Pa. Co. 241. 1 87 88 the stamp was so defaced that it could not be used again.s It might be canceled by a stamp or by writing the maker's 89 or the payee's " initials instead of his full name across the stamp. And any cancellation has been held sufficient which so defaces the stamp that it could never be used again.91 If the stamp on the note is uncanceled the maker cannot take advantage of his omission to cancel it as a defense to the note.92 [204] 4. Stamping after Delivery. Although the statutes may require an instrument to be stamped on its delivery, it has been held that it may be stamped afterward if the omission was not fraudulent, ,93 and might even be stamped by the holder, notwithstanding the maker's refusal or protest.94 If the stamp was omitted without fraud it might be stamped at the trial of the case, 95 and when once legally affixed it relates back to the date of the original delivery;96 and this has been held to be the effect where the instrument was stamped by the collector, even though the stamp had been omitted with fraudulent intent.97 After it has matured and after the maker's death it has been held that the instrument cannot be stamped.98 the person making, signing, or issuing, or accepting, negotiating, or paying, unstamped instruments, with intent to evade the provisions of the act, should incur a penalty, and that the instrument so signed or issued should be invalid and of no effect.1 It was also provided that no such instrument, until stamped, should be admissible as evidence in any court.2 Applicability to state courts. The constitutionality of the Stamp Act has been repeatedly examined by the courts of the several states. Some decisions have gone so far as to hold that it is not within the constitutional power of congress to declare void contracts made under state laws and having no connection with the federal government,3 or to prescribe the rules of evidence for the state courts. Again, with more caution, it has been declared that, without deciding that congress has no such power, its exercise is not to be presumed without the clearest manifestation of the legislative intention in the words of the statute, and that such an intention is not manifested in the act.5 Proceeding on one or another of these grounds, the great weight of authority is to the effect that the Stamp Act applies only to the federal courts, and that unstamped instruments are valid and admissible in evidence in the state tribunals. A few decisions, on the other hand, have held the act constitutional and defense in an ac95, Ala.-Foster V. Holley, 49 Ala. 593; Blunt v. Bates, 40 Ala. 470 (by holder's attorney). [§ 205] 5. Effect of Omitting Stamp. Early United States stamp acts provided only that unstamped instruments should not be admissible in evidence in any court.99 Later acts provided that 87. Taylor v. Duncan, 33 Tex. 440. | against him as a 88. Foster v. Holley, 49 Ala. 593. tion on the note). 89. Spear v. Alexander, 42 Ala. 572; Rees v. Jackson, 64 Pa. 486, 3 AmR 608. 90. Schultz v. Herndon, 32 Tex. 390; Chicago Third Nat. Bank v. Bosby, 43 U. C. Q. B. 58 (initials of cashier sufficient). 91. Taylor v. Duncan, 33 Tex. 440. 92. Desmond v. Norris, 10 Allen (Mass.) 250; Mogelin v. Westhoff, 33 Tex. 788. See Schuylkill Plush, etc., Co. v. Shappell, 11 Pa. Dist. 554, 26 Pa. Co. 241. 93. Ala.-Rowland v. Plummer, 50 Ala. 182 (after transfer). Ark.-Bumpass v. Taggart, 26 Ark. 398, 7 AmR 623 (after suit brought). Ga.-Green v. Lowry, 38 Ga. 548. Hawaii.-Wo Sing v. Kwong Chong Wai Co., 16 Hawaii 17. Compare Bottomley v. Hall, 18 Hawaii 412. Iowa.-Mitchell v. Smith, 32 Iowa 484 (especially where it is stamped by the payee, in pursuance of authority given at the time of its execution); Sperry v. Horr, 32 Iowa 184; Robinson v. Lair, 31 Iowa 9; Blackwell v. Denie, 23 Iowa 63 (after issue joined). La.-Pavy v. Bertinot, 25 La. Ann. 469. Mass.-Willey v. Robinson, 13 Allen 128. Mo.-Day v. Baker, 36 Mo. 125. Pa.-Walsh v. Carroll, 6 Phila. 590. Tex.-Mays v. Rutledge, 37 Tex. 134 (after transfer). Va.-Hannon v. Batte, 5 Munf. (19 Va.) 490 (under act 1912). Can. -Wallace v. Souther, 16 Can. S. C. 717 appendix; Chapman v. Tufts, 8 Can. S. C. 543. N. S.-Nova Scotia Bank v. Chipman, 8 N. S. 438. Ont.-Trout v. Moulton, 5 Ont. A. 654; Boustead v. Jeffs, 44 U. C. Q. B. 255 Chicago Third Nat. Bank V. Cosby, 43 U. C. Q. B. 58. 94. Day v. Baker, 36 Mo. 125. But see Centreville First Nat. Bank v. Dougherty, 29 Iowa 260 (holding that, where the holder of a promissory note issued without a stamp and afterward stamped without authority and in violation of express agreement received it with notice of these facts, they may be properly pleaded Ark.-Knott v. Knott, 26 Ark. 444. 123. Miss. Waterbury v. McMillan, 46 N. H.-Garland v. Lane 46 N. H. 245. N. Y.-Redlich v. Doll, 54 N. Y. 234, 13 AmR 573. [a] Contra in Canada.-Roberts v. Vaughan, 11 Can. S. C. 273. [b] Application of the act of 1864 to instruments made after its passage see Whigham v. Pickett, 43 Ala. 140; Tobey v. Chipman, 13 Allen (Mass.) 123. 96. Dorris v. Grace, 24 Ark. 326; Gibson V. Hibbard, 13 Mich. 214; Aldrich v. Hagan, 50 N. H. 60; Long v. Spencer, 78 Pa. 303. 97. Crews v. Farmers' Bank, 31 Gratt. (72 Va.) 348. 98. 124. 99. Wayman v. Torreyson, 4 Nev. 1 U. S. St. at L. 530 c 11 § 2. Bottomley v. Hall, 18 Hawaii V. [a] in England (1) unstamped bills are not admissible in evidence, but they may be looked at for collateral purposes, as to show fraud or illegality (Gregory v. Fraser, 3 Campb. 454; Coppock v. Bower, 4 M. & W. 361, 150 Reprint 1468), (2) or usury (Nash v. Duncomb, 1 M. & Rob. 104), (3) or to corroborate a witness (Dover v. Maestaer, 5 Esp. 92), (4) or to refresh his memory (Maugham v. Hubbard, 8 B. & C. 14, 15 ECL 17, 108 Reprint 948). 3. Craig v. Dimock, 47 Ill. 308; Latham v. Smith, 45 Ill. 29; Hunter v. Cobb, 1 Bush (Ky.) 239; Burson v. Huntington, 21 Mich. 415, 4 AmR 497; Sammons v. Halloway, 21 Mich. 162, 4 AmR 465. Power of "state" to impose stamp duties on see Commerce [7 Cyc 475]. 4. Ark.-Bumpass v. Taggart, 26 Ark. 398, 7 AmR 623. La.-Holt v. Hart, etc., Bd. of Liquidators, 33 La. Ann. 673; Pargoud v. Richardson, 30 La. Ann. 1286. N. Y.-Moore v. Moore, 47 N. Y. 467, 7 AmR 466; Peo. v. Gates, 43 N. Y. 40. Tenn.-Sporrer v. Eifler, 1 Heisk. 633. Va.-Crews v. Farmers' Bank, 31 Gratt. (72 Va.) 348. 5. Craig v. Dimock, 47 Ill. 308; Green v. Holway, 101 Mass. 243, 3 AmR 339; Haight v. Grist, 64 N. C. 739. 6. Ala.-Bates v. Bailey, 57 Ala. 73; Perryman v. Greenville, 51 Ala. 507; McElvain v. Mudd, 44 Ala. 48, 4 AmR 106. Ark.-Bumpass v. Taggart, 26 Ark. 398, 7 AmR 623. Cal. Thomasson v. Wood, 42 Cal. 416; Duffy v. Hobson, 40 Cal. 240, 6 AmR 617. Conn.-Rockwell v. Hunt, 40 Conn. 328; Griffin v. Ranney, 35 Conn. 239. Fla. Forcheimer v. Holly, 14 Fla. 239. Ill-Bowen v. Byrne, 55 Ill. 467; Hanford v. Obrecht, 49 Ill. 146; U. S. Express Co. v. Haines, 48 I. 248; Bunker v. Green, 48 Il. 243; Craig v. Dimock, 47 Ill. 308; Latham v. Smith, 45 Ill. 29. Ind.-Wallace v. Cravens, 34 Ind. 534; Dillingham v. Parks, 30 Ind. A. 61, 65 NE 300. Ky.-Hunter v. Cobb, 1 Bush 239. La.-Holt v. Hart, etc., Bd. of Liquidators, 33 La. Ann. 673; Pargoud v. Richardson, 30 La. Ann. 1286. Md.-Ebert v. Gitt, 95 Md. 186, 52 A 900. Mass.-Rowe v. Bowman, 183 Mass. 488, 67 NE 636; Moore v. Quirk, 105 Mass. 49, 7 AmR 499; Green v. Holway, 101 Mass. 243, 3 AmR 339; Lynch v. Morse, 97 Mass. 458 note; Carpenter v. Snelling, 97 Mass. 452. Mich.-Burson v. Huntington, 21 Mich. 415, 4 AmR 497; Sammons v. Halloway, 21 Mich. 162, 4 AmR 465; Clemens v. Conrad, 19 Mich. 45 170. Miss.-Davis V. Richardson, N. C.-Haight v. Grist, 64 N. C. 739. 633. applicable to state courts." Intent. Only those instruments from which stamps are omitted with intent to evade the provisions of the Stamp Act are rendered void thereby, and when stamps are omitted innocently the yalidity of the instrument is not affected.8 The weight of authority sanctions the rule that instruments left unstamped with no intent to evade the act may be read in evidence without a stamp," but it has been held that, while such instruments are not invalid, they cannot be admitted as evidence until properly stamped.10 Presumptions. If an instrument bears a proper X. CONTENTS AS AFFECTING [§ 206] A. In General-1. Enumeration.20 In readiness and safety, the certainty and the scope order that bills and notes may fulfill their purpose of the contract in all material points, and the whole as a medium of exchange and may circulate with history of the title, must appear on the face of Vt.-Atkins v. Plympton, 44 Vt. Mo.-Whitehill v. Shickle, 43 Mo. | Miss. 635; Morris v. McMorris, 44 537; More v. Clymer, 12 Mo. A. 11. Miss. 441, 7 AmR 695. N. Y.-Beebe v. Hutton, 47 Barb. 187. 21. Va.-Crews v. Farmers' Bank, 31 Gratt. (72 Va.) 348; Hale v. Wilkinson, 21 Gratt. (62 Va.) 75. W. Va.-Weltner v. Riggs, 3 W. Va. 445. 7. Patterson v. Gile, 1 Colo. 200; Chartiers, etc., Turnp. Co. v. McNamara, 72 Pa. 278, 13 AmR 673 (decided by a divided court). 19 [a] In other decisions the absolute necessity of a stamp upon instruments introduced in evidence in state courts has been upheld. This, of course, affirms in effect the constitutionality of the act and its applicability in state courts. Muscatine v. Sterneman, 30 Iowa 526, 6 AmR 685; Hugus v. Strickler, Iowa 413; Bernard's Succ., 24 La. Ann. 402; Corrie v. Billiu, 23 La. Ann. 250; McLearn v. Skelton, 18 La. Ann. 514; Wayman v. Torreyson, 4 Nev. 124; Maynard v. Johnson, 2 Nev. 16; Edeck v. Ranuer, 2 Johns. (N. Y.) 423 (decision under the act of 1797 and not in accord with the later New York cases); Miller V. Morrow, 3 Coldw. (Tenn.) 587 [overr in effect Sporrer v. Eifler, 1 Heisk. (Tenn.) 633]. But see Mitchell v. Home Ins. Co., 32 Iowa 421. But compare. Pargoud v. Richardson, 30 La. Ann. 1286 (overruling this doctrine). 8. U. S.-Campbell v. Wilcox, 10 Wall. 421, 19 L. ed. 973; U. S. v. Griswold, 8 Fed. 556, 7 Sawy. 311; Dowell v. Applegate, 7 Fed. 881, 7 Sawy. 232. Ala.-Hooper v. Whitaker, 130 Ala. 324, 30 S 355; Bibb v. Bonds, 57 Ala. 509; Whigham V. Pickett, 43 Ala. 140. Ark.-Bumpass v. Taggart, 26 Ark. 398, 7 AmR 623. N. Y.-Baker v. Baker, 6 Lans. 509; Vaughan v. O'Brien, 57 Barb. 491, 39 How Pr 515; Gregory v. Hitchcock Pub. Co., 31 Misc. 173, 63 NYS 975. Oh.-Harper v. Clark, 17 Oh. St. Pa.-Long v. Spencer, 78 Pa. 303; Tex.-Dailey v. Coker, 33 Tex. 815, Vt.-Atkins v. Plympton, 44 Vt. 21. Wis.-State v. Hill, 30 Wis. 416; Ont.-Healey v. Dolson, 8 Ont. 691; V. Contra Maynard v. Johnson, 2 Nev. 25 [overr 2 Nev. 16]. [a] The rule applies (1) although the omission was at the time intentional (Patterson v. Gile, 1 Colo. 200), (2) and a fortiori where the stamp was omitted by an agent in violation of his principal's instructions (Vaughan v. O'Brien, 57 Barb. (N. Y.) 491). [b] In Maryland, where the act of 1856, c 352, repealing the act of 1844, c 280, requiring notes to be stamped, provides that unstamped notes executed previous to the repeal shall be as valid as though stamped, a note upon which suit was pending at the time of the repeal was held to be a valid instrument of evidence, although not Ill-Bowen v. Byrne, 55 Ill. 467; | stamped. Reynolds v. Furlong, 10 Hanford v. Obrecht, 49 Ill. 146; Bunker v. Green, 48 Ill. 243; Craig v. Dimock, 47 Ill. 308. But see Topping v. Maxe, 39 Ill. 159. Cal.-Hallock v. Jaudin, 34 Cal. 167. La.-McLearn v. Skelton, 18 La. Ann. 514. Me.-Dudley v. Wells, 55 Me. 145. Md.-Ebert v. Gitt, 95 Md. 186, 52 A 900 (under the act of 1898); Čarson v. Phelps. 40 Md. 73; Black v. Woodrow, 39 Md. 194. Mass.-Rowe v. Bowman, 183 Mass. 488, 67 NE 636. Mich. Sammons v. Halloway, 21 Mich. 162, 4 AmR 465. Minn.-Cabbott V. Radford, 17 Minn. 320. Miss.-Waterbury v. McMillan, 46 Miss. 635; Morris v. McMorris, 44 Miss. 441, 7 AmR 695. [8 C. J.-8] Md. 318. 9. Ala.-Perryman v. Greenville, Ill-Bowen v. Byrne, 55 Ill. 467; 194. V. N. Y.-Schermerhorn v. Burgess, 38 How Pr 123. Wis.-Fenelon V. Hogoboom, 31 Wis. 172; Timp v. Dockham, 29 Wis. 440; Grant v. Connecticut Mut. L. Ins. Co., 29 Wis. 125; Rheinstrom v. Cone, 26 Wis. 163, 7 AmR 48. 10. Ala.-Turner v. State, 48 Ala. 549. Hawaii.-Bottomley v. Hall, 18 Ha waii 412. Ind.-Plessinger v. Depuy, 25 Ind. 419. Miss.-Waterbury v. McMillan, 46 Pa.-Chartiers, etc., Turnp. Co. v. McNamara, 72 Pa: 278, 13 AmR 673. But see Lerch v. Snyder, 112 Pa. 161, 4 A 336 (where failure to affix stamp was the fault of officer). 11. Marine Inv. Co. v. Haviside, L. R. 5 H. L. 624, 11 ERC 460 (lost bill presumed properly stamped). 12. Union Agricultural, etc., Assoc. v. Neill, 31 Iowa 95; Iowa, etc., R. Co. v. Perkins, 28 Iowa 281; Bradlaugh v. De Rin, L. R. 3 C. P. 286 [rev on other grounds L. R. 5 C. P. 473]. See Roberts v. Vaughan, 11 Can. S. C. 273. 13. Iowa, etc., R. Co. v. Perkins, 28 Iowa 281. [a] Stamps reused.-And stamps which by the mark upon them appeared to have been used upon some former instrument will not, in the absence of evidence of mistake, be regarded as fraudulently used. Rockwell v. Hunt, 40 Conn. 328. 14. Ala.-Whigham v. Pickett, 43 Ala. 140. Ark.-Bumpass v. Taggart, 26 Ark. 398, 7 AmR 623. Ill. Craig v. Dimock, 47 Ill. 308. Iowa. Ricord v. Jones, 33 Iowa 26. Mass.-Moore v. Quirk, 105 Mass. 49, 7 AmR 499. Miss.-Waterbury v. McMillan, 46 Miss. 635; Morris v. McMorris, 44 Miss. 441, 7 AmR 695. N. Y.-Baker v. Baker, 6 Lans. 509; Howe v. Carpenter, 53 Barb. 382 (even though intentional); New Haven, etc., Co. v. Quintard, 6 Abb PrNS 128. W. Va.-Weltner v. Riggs, 3 W. Va. 445. Wis.-Grant v. Connecticut Mut. L. Ins. Co., 129 Wis. 125. 15. Centreville First Nat. Bank v. Dougherty, 29 Iowa 260. son 16. Jacquin v. Warren, 40 Ill. 459. 17. Sperry v. Horr, 32 Iowa 184 Robinson v. Lair, 31 Iowa 3; Anderv. Starkweather, 28 Iowa 409; Blackwell v. Denie, 23 Iowa 63. 18. See supra § 203. 19. Ill.-Israel v. Redding, 40 Ill. 362. Miss.-Waterbury v. McMillan, 46 Miss. 635; Humphreys v. Wilson, 43 Miss. 328. Vt.-Wilson v. Carey, 40 Vt. 179. N. S.-Frost v. Brennan, 9 N. S. 40. Ont. Caughill v. Clarke, 3 Ont. 269, 9 Ont Pr 471. 20. Cross reference: Alteration of see Alteration of Instruments 2 C. J. p 1168. Formal requisites see supra §§ 187- Reformation of, where terms and 22 the instrument, and there should be no necessity for 38 [§ 207] 2. Effect of Omissions and Irregularities Merely Formal. The law looks at effect and substance rather than at nicety of form, and, where the intention and meaning are clear, a bill or a note will not be rendered invalid by reason of the omission of some word easily supplied,37 or on account of errors in grammar or orthography.3 For instance, where the instrument omits the word "year," "month," "days," "date," or the like;39 or "dollars";40 or "interest"; "';41 such word may be supplied in a proper case where the meaning is clear. Likewise, on the other hand, words may be rejected to effectuate the intention of the party.42 So an abbreviation, perfectly meaningless, added to the drawer's name, such as the letters "Fr.," has no effect on his liability.48 The usual abbreviation of the word "national" in designating the national bank at which a note is payable does not affect the negotiability of the note; nor is it material that the article "the" prefixed to the name of the bank in its charter is omitted.44 [208] B. Order or Promise to Pay-1. Necessity for. A bill or a draft must contain an "order" for payment,15 as distinguished from a mere The Negotiable Instruments Law expressly provides as to all these matters 32 and adds a general provision that the instrument need not follow the language of the act, but that any terms are sufficient which clearly indicate an intention to conform to the requirements thereof.33 This statute, however, did not change the law merchant as to the fundamental requirements of negotiable instruments.34 In order to determine whether an instrument is negotiable in those states which have adopted the Negotiable Instruments Law, it is necessary 21. U. S. v. U. S. Bank, 5 How. 25. Kessler v. Clayes, 147 Mo. A. (U. S.) 382, 397, 11 L. ed. 439 (where 88, 125 SW 799. See also infra §§ the court said: "A bill of exchange 264-312. is an instrument governed by the 26. See infra §§ 251-259. commercial law; it must carry on its 27. See infra §§ 233-245. face its authority to command the 28. money drawn for, so that the hold29. er, or the notary, acting as his agent, may receive the money, and give a discharge, on presenting the bill and receiving payment; or, if payment is refused, enter a protest, from which follows the incident of damages. But if no demand can be made on the bill standing alone, and it depends on other papers or documents to give it force and effect, and these must necessarily accompany the bill and be presented with it, it cannot be a simple bill of exchange, that circulates from hand to hand, as the representative of current cash"). See Gibson v. Minet, H. Bl. 569, 126 Reprint 326; Hartley v. Wilkinson, 4 M. & S. 25, 105 Reprint 744; Carlos v. Fancourt, 5 T. R. 482, 101 Reprint 272, 4 ERC 180. [a] An instrument to be negotiable must amount to an independent promise to pay at all events, at a certain time, to a definite person, a definite amount without condition. Croft v. Beecher, 185 Ill. A. 622. [b] Where a written instrument is negotiable must be determined from the writing itself and cannot depend on extrinsic facts. Equitable Trust Co. V. Harger, 258 fll. 615, 102 NE 209 [aff 177 Ill. A. 106]. [c] A contract entitled "Stockholder's Purchasing Contract" whereby the subscriber purchased a horse, following which there was a promise to pay a fixed sum in certain installments in the form of a promissory note, was a purchasing contract and not a negotiable note. Leiter v. Poindexter, 220 Fed. 610, 136 CCA 68 (where the court gives no reasons for its holding and it is difficult to understand on what basis the decision can be sustained). 22. See infra §§ 208-210. 23. See infra §§ 211-219. 24. See infra §§ 220-224. See infra §§ 225-232. Hopper v .Eiland, 21 Ala. 714; [a] A proviso in a note is not 30. See supra § 52. 31. Smith V. Tyler First State [a] "An instrument to be negoti- 33. See statutory provisions. 35. See statutory provisions. 37. Durant V. Murdock, 3 App. on vertence, and such words are obvi- 38. Com. v. Parmenter, 5 Pick. (Mass.) 279 ("I promised" for "I promise"); Perkins v. Com., 7 Gratt. (48 Va.) 651, 56 AmD 123. [a] Amount.-The fact that the amount of a note is written "four hund and two and 50/100 dollars" is immaterial. Glenn v. Porter, 72 Ind. 525. [b] "Pe. cen." for "percentum" has a well-understood meaning, and the use of such phrase does not interfere with the character of a note in which its occurs. Gramer v. Joder, 65 Ill. 314. 39. See infra § 592. 40. 41. See infra § 259. Gramer v. Joder, 65 Ill. 314; Thompson v. Hoagland, 65 Ill. 310; Higley v. Newell, 28 Iowa 516. 42. Simpson v. Vaughan, 2 Atk. 32, 26 Reprint 415 (where the note read, "I promise never to pay," it was decided that the word "never" must be rejected, or read "ever"); Russel v. Langstaffe, 2 Dougl. 514, 99 Reprint 328. 43. Barclay v. Pursley, 110 Pa. 13, 20 A 411. 44. Graham v. Louisville City Nat. Bank, 103 Ky. 641, 45 SW 870, 20 KyL 295. 45. Il-Knefel v. Flanner, 66 Ill. A. 209 [aff 166 Ill. 147, 46 NE 762]; Bowes v. Chicago Industrial Bank 58 Ill. A. 498; Miers v. Coates, 57 Ill. A. 216. V. Mass.-Torpey v. Tebo, 184 Mass. 6 Eng. Rex v. Ellor, Leach C. C. 363 ("Please to send Ten Pounds by bearer, as I am so ill I cannot wait upon you"); Little v. Slackford, M. & M. 171, 22 ECL 498. |