Schermerhorn agt. Burgess. abandoned the defense on the trial which they had set up in their answer. The note when brought into court was stamped with the requisite amount of U. S. internal revenue stamps canceled; but it turned out in evidence that they were placed thereon by direction of the plaintiff, and not the defend ants. 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 the proof being furnished that they were left off inadvertently. The note was then offered in evidence, and received with. indorsements of collector. The makers claimed the right to amend their answer to set up the defense that the note was not stamped when issued. This was objected to by plaintiff, but allowed by the referee. The defendants were sworn as witnesses, and made no claim that the stamps were left off with a fraudulent intent. The referree reported that the stamps were not left off the note with any intent to defraud the Government, or evade the provisions of the law. THOMAS and LYON, attorneys, and GEO. F. Danforth, counsel for defendants, appellants. A. P. SMITH, for plaintiff, respondent. I. The referee had no right to permit the defendants to set up the new defense, with reference to the stamps, by amendment of the answer upon the trial. The original answers under oath admitted the making of the note, and no issue over the stamps was submitted to the referee for trial. The referee had no right to amend the answer by making a new issue not submitted to him. (Woodruff agt. Hurson, 32 Barb. R., 557; Union Bank agt. Mott, 10 Schermerhorn agt. Burgess. Abb. Pr. R., 372; S. C., 18 How. Pr. R., 506; Same case, 11 Abb. Pr. R., 46 of opinion, E. D. Smith, J; Same case, 19 How. Pr. R., 267; Everett agt. Vendryes, 19 N. Y. R., 439, GRAY. J.; Catlin agt. Hansen, 1 Duer, 309; Woodruff agt. Dickie, 31; How. Pr. R., 164, and cases; Fagen agt. Davison, 2 Duer, 153). It was not necessary to prove the note nor offer it in evi dence, as it was admitted by the pleadings as they existed at the time the order of reference was made. There is, therefore, no question legally before the court. II. The referee has found as a question of fact that the "stamp was not omitted or left off from said note with the intent to evade the provisions of said act of Congress." The defendants were present when this defense of want of stamps on the note was insisted upon, and both of them were witnesses immedietely after, and yet neither swore that the stamps were left off with any such intent. If a party has it in his power to prove a fact in his favor, and does not, the presumptions are against him as to that fact. (1 Phil. ev., Cow. and Hill's notes, p. 602; 1 Stark. ev., 34. Then again, the law abhors and presumes against fraud. (Fleming agt. Slocum, 18 Johns., 403; Bank of Silver Creek agt. Talcott, 22 Barb., 561 of opinion; Brigham agt. Tillinghast, 15 Barb., 620 of opinion; Kellogg agt. Slauson, 1 Kernan, 305 of opinion.) The indorser, Moses, swears the stamps were not left off by him with a fraudulent intent, and the decision of the collector in remitting the penalty, raises a presumption that the stamps were not fraudulently left off. Fraud is a question of fact for the jury or referee, and the decision of either upon the question is conclusive. (Knapp agt. Smith, 27 N. Y. R., 277; Mathews agt. Rice, 31 N. Y. R., 457; Dygert agt. Remerschnider, 32 N. Y. R., 629; Booth agt. Bunce, 32 N. Y. R., 139.) The referee was justified in his finding upon this point. III. Notes and all other contracts are as valid now as Schermerhorn agt. Burgess. ever without being stamped at all, except where the stamps are left off with intent to evade the provisions of the revenue act. This is the plain provision of the act itself, and all the decisions place this construction upon it. (Int. Rev. Act, (1866,) § 158-204 as issued by Government: Beebe agt. Hutton, 47 Barb., 187; Vorebeck agt. Roe, 50 Barb., 302; Desmond agt. Morris, 10 Allen. (Mass.) R., 250; Trull agt. Moulton, 12 Allen R., 396.) An intent to evade the provisions of the law, by omitting the stamps, being necessary to affect the validity of the note, and the referee having found there was no such intent, a question peculiarly within his province-this court should not entertain the question of the validity of this note. IV. The law only applies to courts of the United States organized by act of congress, and not to state courts over which congress has no jurisdiction. This has been expressly decided in two cases by the supreme court of Massachusetts, just reported. (Carpenter agt. Snelling, 97 Massachusetts R., 452 and note; 73 Yates, 73) The reasoning of those decisions is sound and entitled to consideration, whether considered as stare decisis or not. It was the duty of the defendants to add the stamps, and it does not lie in their mouths to allege their own neglect in avoidance of their own obligation. (McGovern agt. Hoestack, 53 Pennsylvania State Reports, 176.) V. But if the court should decide the foregoing points against the respondent, and hold that this conrt will presume fraud, and that the finding of the referee is not conclusive, then we submit that this note was properly stamped. a. The object of the internal revenue act was to obtain revenue for the support of the government, and if the stamp is only upon the instrument when offered in evidence, that is sufficient-the object of the statute has been accom plished. This note had the requisite stamp on before com ing to court. This is held by all the judges in the 6th dis Schermerhorn agt. Burgess. trict, and they now allow them put on in court at all our circuits. b. The section of the statute referred to authorizes any person having an interest therein to take the paper before a collector and procure the same to be stamped, "and the same shall thereupon be deemed and held to be as valid to all intents aud purposes as if stamped when made or issued." The collector is made the tribunal which is to pass upon the question of the bona fides of the parties in leaving the stamp off, and his decision is conclusive. If the holder of the note may procure it to be stamped, he may (as in this case) procure it to be done by the collector of his district. He is "the collector of revenue of the proper district" within the provisions of the revenue act. He has jurisdiction of the "party having an interest therein." c. Any party holding the note may procure it to be stamped. Were it not that in the 5th district a judge drops the remark that no one but the makers can procure it to be stamped. (48 Barb., 636 of opinion,) it would seem that the question was made too plain by the very wording of the statute, to call for any discussion. By a careful analysis of that case it will be seen that it turned upon another question, and what the judge said upon that question was merely obiter. To say that nobody but the makers can procure notes to be stamped, is to entirely defeat this provision of the statute. Take the case at bar. Would these defendants, who never thought of the stamp question until it was raised on the trial, procure a $3,000 note to be stamped and rendered valid to save themselves from the penalty of $50? The question is itself an answer. We must presume that congress had some object in view in providing against such dishonest defenses as this, and that it was not their intention to say that the men who set up the want of the stamp as a defense, shall be the only men who shall procure a collector to furnish evidence to defeat Schermerhorn agt. Burgess. that defense. Congress meant just what they said, "that, hereafter, in all cases where the party has not affixed to any instrument the stamp required by law thereon, at the time of making or issuing said instrument, and he or they, or any party having an interest therein, shall be subsequently desirous of affixing such stamp to said instrument, or, if said instrument be lost, to a copy thereof, he or they shall appear before the collector of revenue of the proper district; * and the same shall thereupon be deemed and held to be as valid to all intents and purposes as if stamped when made or issued." (U. S. Int. Rev. L., 1866, p. 110, § 204 issued by Government). All the decisions, except the above, are in harmony with the language of this section. (Beebe agt. Hutton, 47 Barb., 194 of opinion; Vail agt. Knapp, 49 Barb., 299.—(Feb. 1867). In this last case the collector placed the stamp on the mortgages at the request of the mortgagees, after the property had been attached, and the court says: "I am of opinion that if any stamps were required, such mortgages were properly stamped by said collector, and thereby rendered valid and operative in this state against the attaching creditor, &c." In Vail agt. Knapp the court makes this sensible remark, which commends itself to any legal mind: "The statute is penal, and should not, even in a doubtful case, receive a construction which would invalidate the security." There is no merit in this defense. The defendants by their sworn answer admitted the making of the note. The absence of the stamp was never thought of by any of the parties until mentioned by a witness upon the trial. The note then bore the requisite amount of stamps. It was then restamped by the collector, and penalty remitted by him. The government has not been defrauded, nor has any such intent been shown, though the makers were on the stand. The defense is technical and dishonest, and the courts |