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and a third party, stating that the bill was outstanding and
unpaid, took off the bar of the statute in favor of indorsees who
sued the acceptors. (e) So a payment to a supposed adminis-

by the assignees of one of two joint and several promisors has been thought to take
the note out of the statute as against the solvent maker. Jackson r. Fairbank, 2 11. Bl.
340 ; Perham v. Raynal, 2 Bing. 306. But see Brandram v. Wharton, 1 B. & Aid. 461.

(a) Burt V. Palmer, 5 Esp. 145 ; Watts v. Devor, 1 Grant's Cas. 267. A wife
acting as agent, therefore, may make a good acknowledgment, and an acknowledg-
ment by the wife in her husband's presence, and tacitly assented to by him, will take
the case out of the statute. Palethorp v. Furnish, 2 Esp 511, note ; Orcutt r. Berreti,
12 La. Ann. 178. So it is with her promise to pay money borrowed by her as agent
for her husband. Burk v. Howard, 13 Misso. 241. The mere fiict, however, that the
agent contracted the original debt has been held to confer no implied authority to save
it from the statute. Watts t;. Devor, 1 Grant's Cas. 267. And if an agent thus exceed
his authority, it will not remove the statute bar. Linsell v. Bonsor, 2 Bing. N. C. 241.
Some cases, however, hold that an acknowledgment must be made strictly by the
party in interest ; and that an acknowledgment in writing signed by an agent is not
sufficient. Hyde r. Johnson, 2 Bing. N. C. 776 ; Martin v. Bridges, 3 Car. & P. 83 ;
Irving 17. Veitch, 3 M. & W. 90. These decisions result from the 9 Geo. IV. eh. 14,
and the similar statutes in this country, under which the acknowledgment must be
signed by the party to be charged. But the agent's written admission now binds his
principal under the 19 & 20 Vict. ch. 97, § 13. An acknowledgment in writing given
by an infant of a debt due for necessaries is sufficient to charge him. Willins o.
Smith, 4 Ellis & B. 180, 28 Eng. L. & Eq. 276,

(6) The acknowledgment must be to creditor or his agent, and not to a stranger.
Bloodgood V. Bruen, 4 Seld. 362 ; Kyle v. Wells, 17 Penn. State, 286 ; Gillingham r.
Gillingham, id. 302 ; Pearson v. Darrington. 32 Ala. 227. See supra, note a ; Hill i:
Kendall, 25 Vt. 528. It must be to the creditor, or his agent, or to a third person,
with intent to influence the action of the creditor. Wakeman c. Sherman, 5 Seld. 85.
Compare with the latter case Bargcr c. Durvin, 22 Barb. 68. supra, p. 654, note /^

(c) Peters v. Brown, 4 Esp. 46 ; Megginson r. Harper, 2 Cromp. & M. 322 ; Whit-
ney c. Bigelow, 4 Pick. 110; Watkins v Stevens, 4 Barb. 168; Carshore » Huyck,
6 id. 583 ; Bloodgood v. Bruen, 4 Sandf 427 ; Philips v. Peters, 21 Barb. 351 ; Min-
kler V. Minkler, 16 Vt. 193 ; Brookes c. Chesley, 4 Gill, 205 ; Oliver v. Gray, 1 Har. &
G. 204 ; Smith v. Campbell, 5 Harring. Del. 380 ; CoUett v. Frazier, 3 Jones, Eq. 80.
Or in general to the party in interest, if made after the debt is barred. Keener e.
Crull, 19 111. 189.

(d) Halliday v. Ward, 3 Camp. 32.

(«;) Mountstephen v. Brooke, 1 B. & Aid. 224. An acknowledgment to a prior
holder of a bill or note has been held a good replication when made by a subse-
quent holder. Gale v. Capern, 1 A. & E. 102. But see Cripps v. Davis, 12 M. & W.
159. In New York, a new promise to the payee is good to his assignee also, in suing

VOL. H. 56



GG2 NOTES AND BILLS. [CH. XV.

trator whose letters were invalid revived the debt in favor of a
subsequent administratur under valid letters. (y) And it lias
been iield that an advertisement in a nc\vsj)aper l)y an exeeutor,
that he will pay all debts justly due fioni his testator, will
protcet a debt Ironi the oj)eration of the statnte.{i,'") Ihit tiiis is
certainly an extreme case, and is, in our opinion, not law. If
one and the same debt is secured by different instruments, pay-
ment of intei'est on any one of them will revive or protect the
debt as to all. (A) No promise revives a debt unless the promise
is legal and binding. Hence a promise made on Sunday has no
effect, (t)

Much question has formerly been made as to the effect of an
indorsement of interest, or part payment made upon a note by
the creditor. Tiie rule seemed to be at length established, that
if he made this indorsement before the debt was barred, it was
admissible evidence to protect the debt from the statute, because
it was an admission by the creditor against his own interest ; (j)
but if it were made after the note was barred, it was no longer
against his interest, but the reverse. (/e) This rule, however, is



the maker under the new code, providiny; that the action is l)n)ii^ht in the name of
the real party in interest. Clark v. Atkinson, 2 E. D. Smith, 112. So it was in
Dean v. Hewit, 5 Wend. 257 ; Bird v. Adams, 7 Ga. 505. So it is, if the promise
was made before it was biirred, though tiie plaintift' take the note after it is barred.
Thompson v. Gilreath, 3 Jones, 493.

(/) Clark V. Hooper, 10 Bing. 480.

((/) Jones V. Scott, 1 Russ. & M. 255.

(A) Dowling V. Ford, 11 M. & W. 329. A payment by a debtor on an obligation
to be paid in instalments, without directing on which, when all the instalments were
due, is supposed to be on the whole debt, and hence prescription on all the instruments
Li interrupted. Ncsom i\ D'Armond, 13 La Ann. 294. But payment of money into
court on a note paj-able by instalments only admits that so niucli money was due,
and does not bar the statute on the balance. Reid v. Dickons, 5 B. & Ad. 499, supra,
p. 660, note z.

(0 Bumgardncr v. Taylor, 28 Ala, 687.

ij) Smith V. Simms, 9 Ga. 418 ; Addams v. Scitzinger, 1 Watts & S. 243 ; Chand-
ler r. Lawrence, 3 Mich. 261 ; Evans v Smith, 34 Maine, 33; Wood v. Wylds, 6
Eng. Ark. 754.

{/c) Clapp V. Ingersol, 11 Maine, 83 ; M'Gehee v. Greer, 7 Port. 533 ; Beatty v. Clem-
ent, 12 La. Ann 82. Indorsement of part payment on a note by the holder, at the
express request of the promisor, revives the note. Sibley v. Phelps, 6 Cush. 172.
And so it does, if made in the debtor's handwriting, as being evidence of a new prom-
ise. Jones i;. Jones, 1 Foster, 219. And .so it does, if made in the holder's handwrit-
ing, if joined with testimony that the defendant had since said that he would pay the
balance. Howe v. Saunders, 38 Maine, 350. And, in general, the credit on account
must appear to have been by actual payment, or with the privity of the defendant



CH. XV.] THE STATUTE OF LIMITATIONS. 663

open to the serious objection, that an entry while the note is still
enforcible, but near the period of limitation, is almost as much
in favor of the creditor, and almost as likely to be made in
fraud, as one made a short time later. (/) By recent statute, in
some of our States, no such indorsement for or of the party to
whom or on behalf of whom the payment is made shall liave the
effect of removing the statutory bar. And it has been sug-
gested, that now an indorsement of principal or interest should
be made by the debtor, and signed by him, to take the case from
the statute, and by the creditor or holder of the note to protect
the debtor.

The statutes of limitation do not ordinarily run against claims
by the State, except by express provision for that purpose. (wi)



Elliott V. Mills, 10 Ind. 368. Hence the rule often adopted is, that the indorsement
of part piiymcnt made by the holder of the note, or in his behalf, is not sufficient evi-
dence of revival, unless it is first proved by evidence aliunde to have been made before
the account was barred, and, consequently, against the interest of the party making it.
Maskcll V. Pooley, 12 La. Ann. 661 ; Beatty ». Clement, id. 82; Alston v. State Bank,
4 Eng. Ark. 455; Brown v. Hutcliings, 14 Ark. 83; Ruddell v. Folsom, id. 213. In
England (see Chitty on Bills, 394), it seems that the holder's indorsement of part pay-
ment made to him will be presumed to have been written when it bears date. Smith
V. Battens, 1 Moody & R. 341 ; Anderson v. Weston, 6 Bing. N. C. 296. And when
admitted, it may go to the jury as evidence of payment. Trenthan r. Deveriil, 3 id.
397 ; Malpas v. Clements, 19 Law J., n. s., Q. B. 435 ; Potez v. Glossop, 2 Exch. 191.

(/) See Smith v. Simms, 9 Ga. 418. And when a small credit of $ 5.00 on a note
otherwise barred was found a payment by the jury, there being also some testimony
showing that it was not made bona fide, a new trial was ordered. Chambers i-.
Walker, 4 Rich. 548. See also Williams v. Alexander, 5 Jones, 162.

(m) Troutman v. May, 33 Penn. State, 455; State >;. Fleming, 19 Misso. 607;
Mahone ». Central Bank, 17 Ga. Ill ; Josselyn v. Stone, 28 Missis. 753 ; People ».
Clarke, 5 Seld. 349 ; Hill v. Josselyn, 13 Smedes & M. 597 ; Walls v. M'Gee, 4 Har-
ring. Del. 108; People v. Van Rensselaer, 8 Barb. 189; Kennedy v. Townsley, 16
Ala. 239 ; Lcvasser v. Washburn, 1 1 Gratt. 572. Nor does the statute run against the
United States. McNamee v. U. S., 6 Eng. Ark. 1-18 ; U. S v. Williams, 5 McLean, 133 ;
Iverson v. Dubose. 27 Ala. 418. The principle is, nullum tempus occurrit reipiibliccE. So
the statute does not run against the grantee of government, it is said, until government
has divested itself of the titles. Kennedy v. Townsley, 16 Ala. 239. But if the occu-
pant be permitted to hold land for a time fixed by the law as imparting dominion over
property, the claim of government will not be good, as is held in Texas, for nullum tem-
pus does not apply. Jones v. Borden, 5 Texas, 410. It has there also been held to
run against the State suing an official for money collected. State v. Purcell, 16 Texas,
305. And it will always run against counties. County of St. Charles v. Powell, 22
Misso. 525.



APPENDIX.



CONCERNING THE STAMPS REQUIRED BY THE STATUTE OF
THE UNITED STATES FOR PROMISSORY NOTES, BILLS OF
EXCHANGE, CHECKS ON BANKS, AND OTHER INSTRU-
MENTS OF SIMILAR CHARACTER.

The Statute of the United States, 1862, Chapter CXIX., en-
titled, " An Act to provide Internal Revenue to support the Gov-
ernment and to pay Interest on the Public Debt," requires that
stamps should be affixed to Bills of Exchange, Promissory Notes,
Checks on Banks, orders and drafts for money, and other similar
instruments.

The provisions of this statute are much more simple and
direct than those of the English stamp-acts, as they are called.
Much litigation has arisen in England concerning those acts.
But many of the questions which have come before the courts
of England relate to the construction and application of pro-
visions whicli are not contained, or of language which is not
used, in the statute of the United States. From these cases we
can derive but little benefit. But those which relate to pro-
visions or language similar to our own may be usefully con-
sidered. The English stamp-acts are very numerous, and a duty
was imposed in this way many years ago. (a) The legal que^-



(a) A revenue has been raised in England by means of stamps for a very long time ;
but before the statute 22 Geo. III. c. 33, there was no stamp duty imposed on bills or
notes, and, indeed, they were expressly exempted from any stamp duty by the b W.
and M. c. 21, ^ 5 ; but, by the first-mentioned statute, certain duties were imposed in
almost all cases upon these instruments. This and two subsequent statutes (23 Geo. III.
c. 49, and 24 Geo. III. ^ 1, c. 7) were repealed, as regards the amount of duties, by the
31 Geo. III. c. 25, whereby certain larger duties were imposed ; and, by the 19th section
of that statute, it was enacted that the stamp must be impressed before a bill or note
was printed or written. The duties were increased by the 37 Geo. III. c. 90, which con-



U STAMP-ACT OF THE UNITED STATES.

tioiis to which they have given rise arc often difficult, and were
very carefully considered. The decisions of those c(Mirts might
have some influence in the courts of this country, as prcccdcjits ;
and certainly would have the respect paid to them which was
due to tlunr reasonableness and their conformity witli the prin-
ciples of law.

It must he remembered, tliat questions in relation to the con-
struction and application of our statute imposing stamps will
not be confined to the United States courts. Tiiey may come
before any court, on the trial of any action grounded upon or
defended by an instrument which was, or should be, stamped.
And in any action in which such an instrument was offered in
evidence.

Most of the questions as to the construction and application
of our statute, which are considered in this Appendix, are with-
out authoritative decision. The law in regard to them cannot be
certainly known until competent tribunals have made it certain ;
or a usage grows up having the force of law. We can do no
more than offer the best opinions we can form, without attempt-
ing to give positive answers to many of these questions.

The sections of the statute of the United States which relate
especially, or directly, to bills, notes, checks, or similar instru-
ments, are the following : —

*•' Sec. 94. And be it further enacted, That on and after the first
day of October, eighteen hundred and sixty-two, tiiere shall be
levied, collected, and paid, for and in respect of the several in-
struments, matters, and things mentioned, and described in the
schedule (marked B) hereunto annexed, or for or in respect
of the vellum, parchment, or paper upon which such instruments,
matters, or things, or any of them, shall be written or printed,
by any person or persons, or party who shall make, sign, or issue
the same, or for whose use or benefit the same shall be made,
signed, or issued, the several duties or sums of money set down

tinacd in force until the 10th October, 1804 ; and from that day until the 11th October,
1808, the 44 Geo. III. c. 98 re<(ulated the amount of the duty ; after that day, and until
the 28th September, 1815, the duties on bills and notes were regulated by tlie 48 Geo.
III. c. 149 ; and from the last-mentioned period until recently, the amount of duty was
ascertained by the 5,5 Geo. III. c. 184. On the 10th October, 18.53, the altered stamp
duties on drafts or orders for the payment of money to bearer on demand came iiiio
operation, under the 16 and 17 Vict, c 59 ; and on the 10th October, 1854, the altered
stamp duties imposed on bills and notes, under the 17 and 18 Vict. c. 83.



STAMP-ACT OF THE UNITED STATES. Hi

in figures against the same, respectively, or otherwise specified
or set forth in the said schedule.

" Sec. 95. And be it further enacted^ Tliat if any person or per-
sons shall make, sign, or issue, or cause to be made, signed, or
issued, any instrument, document, or paper of any kind or de-
scription whatsoever, without the same being duly stamped for
denoting the duty hereby imposed thereon, or without having
thereupon an adhesive stamp to denote said duty, such person
or persons shall incur a penalty of fifty dollars, and such instru-
ment, document, or paper, as aforesaid, shall be deemed invalid
and of no effect.

" Sec. 96. And be it further enacted, That no stamp appropri-
ated to denote the duty charged on any particular instrument,
and bearing the name of such instrument on the face thereof,
shall be used for denoting any other duty of the same amount,
or if so used the same shall be of no avail.

" Sec. 97. And be it further enacted, Tliat no vellum, parch-
ment, or paper, bearing a stamp appropriated by name to any
particular instrument, shall be used for any other purpose, or if
so used the same shall be of no avail.

" Sec. 98. And be it further enacted, That if any person shall
forge or counterfeit, or cause or procure to be forged or counter-
feited, any stamp or die, or any part of any stamp or die, which
shall have been provided, made, or used in pursuance of this act,
or shall forge, counterfeit, or resemble, or cause, or procure to
be forged, counterfeited, or resembled, the impression, or any
part of the impression, of any such stamp or die, as aforesaid,
upon any vellum, parchment, or paper, or shall stamp or mark,
or cause or procure to be stamped or marked, any vellum, parch-
ment, or paper, with any such forged or counterfeited stamp or
die, or part of any stamp or die, as aforesaid, with intent to de-
fraud the United States of any of the duties hereby imposed,
or any part thereof, or if any person shall utter, or sell, or expose
to sale, any vellum, parchment, or paper, article or thing, having-
thereupon the impression of any such counterfeited stamp or die,
or any part of any stamp or die, or any such forged, counter-
feited, or resembled impression, or part of impression, as afore-
said, knowing the same respectively to be forged, counterfeited,
or resembled ; or if any person shall knowingly use any stamp or
die which shall have been so provided, made, or used, as afore-



IV STAMP-ACT OF THE UNITED STATES.

said, with intent to defraud the United States ; or if any person
shall fraudulently cut, tear, or get off, or cause or procure to l>€
cut, torn, or got off, the impression of any stamp or die which
shall have been provided, made, or used in pursuance of tiiis act,
from any vellum, parchment, or paper, or any instrument or
writing, charged or chargeable with any of the duties hereby im-
posed, then, and in every such case, every person so offending, and
every f)erson knowingly and wilfully aiding, abetting, or assisting
in committing any such offence as aforesaid, shall be deemed
guilty of felony, and shall, on conviction thereof, forfeit the said
counterfeit stamps and the articles upon which they are placed,
and be punished by line not exceeding one thousand dollars, and
by imprisonment and confinement to hard labor not exceeding
five years.

" Sec. 99. And be it further enacted. That in any and all cases
where an adhesive stamp shall be used for denoting any duty
imposed by this act, except as hereinafter provided, the person
using or affixing the same shall write thereupon the initials of
his name, and tlie date upon which the same shall be attached
or used, so that the same may not again be used. And if any
person shall fraudulently make use of an adhesive stamp to de-
note any duty imposed by this act without so effectually cancel-
ling and obliterating such stamp, except as before mentioned, he,
she, or they shall forfeit the sum of fifty dollars

" Sec. 100. And be it further enacted, That if any person or
persons shall make, sign, or issue, or cause to be made, signed,
or issued, or shall accept or pay, or cause to be accepted or paid,
with design to evade the payment of any stamp duty, any bill of
exchange, draft, or order, or promissory note for the payment
of money, liable to any of the duties imposed by this act, with-
out the same being duly stamped, or having thereupon an adhe-
sive stamp for denoting the duty hereby charged thereon, he,
she, or they shall, for every such bill, draft, order, or note, forfeit
the sum of two hundred dollars.

" Sec. 101. And be it further enacted, That the acceptor or
acceptors of any bill of exchange or order for the payment of any
sum of money drawn, or purporting to be drawn, in any foreign
country, but payable in the United States, shall, before paying
or accepting the same, place thereupon a stamp indicating the
duty upon tlie same, as the law requires for inland bills of ex-



STAMP-ACT OF THE UNITED STATES. V

change, or promissory notes ; and no bill of exchange shall be
paid or negotiated without such stamp ; and if any person shall
pay or negotiate, or offer in payment, or receive or take in pay-
ment, any such draft or order, the person or persons so offending
shall forfeit the sum of one hundred dollars.

"Sec. 102. And be it further enacted^ That the Commis-
sioner of Internal Revenue may from time to time make regula-
tions for the allowance of such of the stamps issued under the pro-
visions of this act as may have been spoiled or rendered useless or
unfit for the purpose intended, or for which the owner may have
no use, or which through mistake may have been improperly
or unnecessarily used, or where the rates or duties represented
thereby have been paid in error or remitted ; and such allowance
shall be made either by giving other stamps in lieu of the stamps
t^o allowed for, or by repaying the amount or value, after deduct-
ing therefrom, in case of repayment, the sum of five per centum
to the owner thereof.

" Sec. 103. And be it further enacted, That it shall be lawful
for any person to present to the Commissioner of Internal Eev-
enue any instrument, and require his opinion whether or not
the same is chargeable with any duty ; and if the said commis-
sioner shall be of opinion that such instrument is not chargeable
with any stamp duty, it shall be lawful for him, and he is hereby
required, to impress thereon a particular stamp, to be provided
for that purpose, with such word or words or device thereon as
he shall judge proper, which shall signify and denote that such
instrument is not chargeable with any stamp duty ; and every
such instrument upon which the said stamp shall be impressed
shall be deemed to be not so chargeable, and shall be received
in evidence in all courts of law or equity, notwithstanding any
objections made to the same, as being chargeable with stamp
duty, and not stamped to denote the same."

SCHEDULE B.

Stamp Duties.

Agreement or contract, other than those specified in this
schedule ; any appraisement of value or damage, or for
any other purpose ; for every sheet or piece of paper
upon which either of the same shall be written . . $ 0.05



M STAMP-ACT OF THE UNITED STATES.

Bank cliock, draft, or order for the payment of any sum
of money exceeding twenty dollars, drawn upon any
bank, trust company, or any person or persons, compa-
nies, or corporations at sight or on demand, two cents. $0.02

Bill of exchange (inland), draft, or order for the pay-
ment of any sum of money exceeding twenty and not
exceeding one hundred dollars, otherwise than at siglit
or on demand, or any promissory note except bank
notes issued for circulation, for a sum exceeding twenty
and not exceeding one hundred dollars, five cents. . 5

Exceeding one hundred dollars and not exceeding two

hundred dollars, ten cents. ..... 10

Exceeding two hundred dollars and not exceeding three

hundred and fifty dollars, fifteen cents. ... 15

Exceeding three luuidred and fifty dollars and not exceed-
ing five liundred dollars, twenty cents. ... 20

Exceeding five hundred dollars and not exceeding seven

hundred and fifty dollars, thirty cents. ... 30

Exceeding seven hundred and fifty dollars and not ex-
ceeding one thousand dollars, forty cents. . . 40

Exceeding one thousand dollars and not exceeding fifteen

hundred dollars, sixty cents. ..... 60

Exceeding fifteen hundred dollars and not exceeding

twenty-five hundred dollars, one dollar. . . . 1.00

Exceeding twenty-five hundred dollars and not exceeding

five thousand dollars, one dollar and fifty cents. . . 1.50

And for every twenty-five hundred dollars, or part of
twenty-five hundred dollars in excess of five thousand
dollars, one dollar 1.00

Bill of exchange (foreign) or letter of credit, drawn in
but payable out of the United States, if drawn singly,
or otherwise than in a set of three or more, according
to the custom of merchants and bankers, shall pay the
same rates of duty as inland bills of exchange or prom-
issory notes.

If drawn in sets of three or more : For every bill of each
set, where the sum made payable shall not exceed one
hundred and fifty dollars, or the equivalent thereof, in
any foreign currency in which such bills may be ex-
pressed, according to the standard of value fixed by the
United States, three cents 3



STAMP-ACT OF THE UNITED STATES. TB.

Above one hundred and fifty dollars and not above two

hundred and fifty dollars, five cents $ 0.05

Above two hundred and fifty dollars and not above five

hundred dollars, ten cents. ..... 10

Above five hundred dollars and not above one thousand

dollars, fifteen cents. ...... 15

Above one thousand dollars and not above one thousand

five hundred dollars, twenty cents. .... 20

Above one thousand five hundred dollars and not above

two thousand two hundred and fifty dollars, thirty cents. 30

Above two thousand two hundred and fifty dollars and not

above three thousand five hundred dollars, fifty cents. 50

Above three thousand five hundred dollars and not above

five thousand dollars, seventy cents. .... 70

Above five thousand dollars and not above seven thousand

five hundred dollars, one dollar. .... 1.00



Online LibraryTheophilus ParsonsA treatise on the law of promissory notes and bills of exchange (Volume 2) → online text (page 86 of 103)