Schermerhorn agt. Burgess. should not so construe the act as to aid such defenses beyond the clear intent of the law-making power. Substantial justice has been done, and a new trial should be denied with costs. 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 Sched. A. amending § 158 of act of June 13 1864.) The same provision was also contained in the act of 1834, (Beebe agt. Hutton, 47 Barb. 187; Vorebeck agt. Roe 50 id. 302) I confess I do not see that any stamp was neccessary 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 agt. 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 neccessary 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 unneccessary to pass upon the question in this case. Here the revenue stamp had been affixed by the collector of internal revenue, and the Schermerhorn agt. Burgess, proper indorsment 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 defendant's 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. Thepoint 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 in ference and construction. I am clearly of the opinion that when the application is not made by the makers of the instrument, but by another party having an interest therein, as payee, or holder of a nɔte, 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 agt. Smith (48 Barb. 614) that the only proper person to appear befote the collector and make the application to have the stamp affixed, Schermerhorn agt. Burgess. 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 stamping to said instrument, he or they shall appear before the collector &c." This 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. 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 instrument 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. This is the fair grammatical construction of the sentence. The antecedent 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 Schermerhorn agt. Burgess. to 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. Brown agt. Metropolitan Gaslight Company. NEW YORK COMMON PLEAS. DANIEL BROWN and others agt. THE METROPOLITAN GASLIGHT COMPANY. Where the object of the action by the plaintiffs, for an injunction, is to prevent the defendants from dispossessing them for non-payment of rent, and from collecting rent which has become due, and for which a draft has been given, the injunction cannot be sustained-no fraud, surprise or undue advantage being shown. Plaintiffs have remedies at law which are entirely adequate to their emergencies. If any counter-claim exists to the draft, it can be set up in any action brought to compel its payment; and if any proceeding for the non-payment of rent by the defendants be adopted against the plaintiffs, the payment of the rent would not debar the plaintiffs from securing any debt of a similar character due from the defendants, it appearing that they are entirely solvent, Special Term, November 1869. MOTION for an injunction to restrain defendants from taking proceedings to collect or sue for rent, or to dispossess a tenant for non-payment of rent. ALGERNON S SULLIVAN, for motion. BRADY J. In this case the interposition of this court by injunction was unnecessary. The defendants have a valid claim against the plaintiffs. The plaintiffs, assuming their statement to be true, have a counter claim against the defendants, for which they have a legal remedy, and which can be collected if established, because it appears that the defendants are entirely solvent. The averments of the plaintiffs of a hiring by the defendants from them, and upon which the counter claim rests, are denied, and some proof is added to the denial which |