The act of Congress, approved June 13, 1898, to provide ways and means to meet war expenditures and for other purposes, provided that revenue stamps must be placed on certain kinds of instruments; made omission so to do a misdemeanor, punishable by fine or imprisonment or both; made certain provisions concerning the validity of instruments from which such stamps were omitted, and other provisions concerning the use of such instruments as evidence. The earlier acts of 1862, 1864 and 1866 contained similar provisions. The effect of such omission will therefore be considered without discussion of the specific statute under which the case was decided. The revenue stamp is no part of the instrument.1 A petition not averring that the instrument is stamped is not demurrable.2 The stamp need not therefore be described in an indictment for forging such instrument.3 An unstamped note may be the subject of forgery.4

4 Just v. Wise Township, 42 Mich. 573; 4 N. W. 298.

5Blaisdell v. Leach. 101 Cal.405; 40 Am. St. Rep. 65; 35 Pac. 1019.

6Blaisdell v. Leach. 101 Cal. 405; 40 Am. St. Rep. 65; 35 Pac. 1019.

7Bartlett v. Tucker, 104 Mass. 336; 6 Am. Rep. 240.

1 Thomasson v. Wood, 42 Cal. 416; Green v. Holway, 101 Mass. 243: 3 Am. Rep. 339; Trull v. Moulton, 12 All. (Mass.) 396; Morris v. McMorris, 44 Miss. 441; 7 Am. Rep. 695.

2Ebert v. Gitt, 95 Md. 186; 52 Atl. 900.

3 Laird v. State, 61 Md. 309; State v. Mott, 16 Minn. 472; 10 Am. Rep. 152: Miller v. People, 52 N. Y. 304; 11 Am. Rep. 706; Beer v. State, 42 Tex. Cr. Rep. 505; 96 Am. St. Rep. 810; 60 S. W. 962.

4 King v. State. 42 Tex. Cr. Rep. 108; 96 Am. St. Rep. 792; 57 S. W.

While the stamp is not technically a part of the instrument, the effect of its omission on the use of the instrument as evidence must be considered. The federal statute of 1898 provides that an instrument not duly stamped shall not be "admitted or used as evidence in any court."5 This clause would appear at first glance to make a class of contracts somewhat like those under the statute of frauds - that is, a class of contracts on which no action can be brought, since the contract itself cannot be proved. In spite of the broad language of the statute, however, this has been held to apply only to the United States courts and to have no application whatever to state courts.6 This holding is based on the theory that the power of Congress to make rules of evidence for state courts is very doubtful, and that, accordingly, the statute will be construed as having "a meaning which will give it full operation and effect within the recognized scope of the constitutional authority of Congress."7 Some courts go farther and base their holdings chiefly on the proposition that whatever the intention of Congress, it had no power to make rules of evidence for the state courts,8 while other courts have preferred to base their decision upon the construction of the statute.0 Some states have held, contrary to the foregoing views, that such statutes applied even to state courts.10 The next point to be considered is the validity of a contract from which a revenue stamp is omitted, contrary to the statute, apart from questions of its use as evidence. The act of Congress, approved June 13, 1898, provided11 that "such instrument, document, or paper, not being stamped according to law shall be deemed invalid and of no effect." This has been held not to apply to cases, otherwise covered by the act, where the omission to affix a stamp was not fraudulent; but occurred through mere inadvertence.12 Hence on compliance with the provisions of the statute for supplying stamps which had been omitted inadvertently the instrument is as valid as if originally stamped.13 If the instrument is one from which the stamp has been omitted with fraudulent intent, we are confronted with the question whether Congress has power to invalidate an instrument whose validity depends in other respects upon state law, for fraudulent and wilful omission of revenue stamps. Upon this question we find that it is generally either assumed or decided that Congress has no power to make such instruments invalid; and hence they are held to be valid even if the requisite revenue stamp is omitted.14 It is true that in some of the cases cited this point is scarcely touched upon; but it is assumed necessarily in these decisions: since the courts discuss the admissibility of the instrument in evidence, and on holding it to be admissible, often even in cases where the revenue stamp is omitted wilfully, decide the case on the theory that if admissible in evidence the instrument must necessarily be enforceable. If the statute does not specifically provide that the instrument is to be void if the stamp is omitted, omission of the stamp will not make it void.15

840; Thomas v. State, 40 Tex. Cr. Rep. 562; 76 Am. St. Rep. 740; 46 L. R. A. 454; 51 S. W. 242; State v. Peterson, 129 N. C. 556; 85 Am. St. Rep. 756; 40 S. E. 9.

5 Section 14 of Act.

6 Bumpass v. Taggert, 26 Ark. 398; 7 Am. Rep. 623; Garland v. Gaines, 73 Conn. 662; 84 Am. St. Rep. 182; 49 Atl. 19; Griffin v. Ranney, 35 Conn. 239; Small v. Slocumb, 112 Ga. 279; 81 Am. St. Rep. 50; 53 L. R. A. 130; 37 S. E. 481; United States Express Co. v. Haines, 48 Ill. 248; Bunker v. Green, 48 Ill. 243; Green v. Hol-way, 101 Mass. 243; 3 Am. Rep. 339; Carpenter v. Snelling, 97 Mass. 452; Sammons v. Halloway, 21 Mich. 162; 4 Am. Rep. 465; Knox v. Rossi. 25 Nev. 96; 83 Am. St. Rep. 560; 48 L. R. A. 305; 57 Pac. 179 (overruling Wayman v. Torreyson, 4 Nev. 124; Maynard v. Johnson, 2 Nev. 25) ; Cassidy v. St. Germain, 22 R. I. 53; 46 Atl. 35; Kennedy v. Roundree, 59 S. C. 324; 82 Am. St. Rep. 841; 37 S. E. 942; Ins. Co. v. Estes, 106 Tenn. 472; 82 Am. St. Rep. 892; 62 S. W. 149; sub nomine, Southern Ins. Co. v. Estes, 52 L. R. A. 915; Sporrer v. Eifler, 1 Heisk. (Tenn.) 633; Miller v. Morrow, 5 Heisk. (Tenn.) 689 (reversing on rehearing Miller v. Morrow, 3 Cold. (Tenn.) 587); Walt v. Walsh, 10 Heisk. (Tenn.) 314.

7 Carpenter v. Snelling, 97 Mass. 452, 458; quoted in Knox v. Rossi, 25 Nev. 96, 100; S3 Am. St. Rep. 566; 48 L. R. A. 305; 57 Pac. 179.

8Duffy v. Hobson, 40 Cal. 240; 6 Am. Rep. 617; Bowen v. Byrne, 55 Ill. 467; Latham v. Smith, 45 Ill. 29; Wallace v. Cravens, 34 Ind.

534; Hunter v. Cobb. 1 Bush. (Ky.) 239; Sporrer v. Eifler, 1 Heisk. (Tenn.) 633; Schultz v. Herndon, 32 Tex. 390.

9 Trowbridge v. Addoms, 23 Colo. 318; 48 Pac. 535; Clemens v. Conrad, 19 Mich. 170; People v. Gates, 43 N. Y. 40; Stewart v. Hopkins, 30 O. S. 502; Talley v. Robinson, 22 Gratt. (Va.) 888; Weltner v. Riggs, 3 W. Va. 445.

10 Muscatine v. Sterneman, 30 la. 526; 6 Am. Rep. 685; Chartiers, etc., Co. v. McNamara, 72 Pa. St. 278; 13 Am. Rep. 673.

11 Section 13 of Act.

12. Campbell v. Wilcox, 10 Wall. (U. S.) 421; Trowbridge v. Addoms, 23 Colo. 518; 48 Pac. 535; Craig v. Dimock, 47 Ill. 308; Mitchell v. Ins. Co., 32 la. 421 (overruling Muscatine v. Sterneman, 30 la. 526; 6 Am. Rep. 685; Berry v. Boyd, 28 la. 410; Botkins v. Spurgeon, 20 la. 598) ; Emery v. Hobson, 63 Me.

33; Black v. Woodrow, 39 Md. 194; Moore v. Quirk, 105 Mass. 49; 7 Am. Rep. 499; Green v. Holway, 101 Mass. 243; 3 Am. Rep. 339; Cab-batt v. Radford, 17 Minn. 320; Morris v. McMorris, 44 Miss. 441; 7 Am. Rep. 695; Stewart v. Hopkins, 30 O. S. 502; Gaylor v. Hunt, 23 O. S. 255; Harper v. Clark, 17 O. S. 190; Atkins v. Plympton, 44 Vt. 21; Smith v. Scott, 31 Wis. 437; Fenelon v. Hogaboom, 31 Wis. 172. Insurance policy, Ins. Co. v. Estes, 106 Tenn. 472; 82 Am. St. Rep. 892; 62 S. W. 149; sub nomine, Southern Ins. Co. v. Estes, 52 L. R. A. 915. Assignment of mortgage, Win-gert v. Ziegler, 91 Md. 318; 80 Am. St. Rep. 453; 51 L. R. A. 316; 46 Atl. 1074. Note, Rowe v. Bowman, 183 Mass. 488; 67 N. E. 636.

13 Wingert v. Ziegler, 91 Md. 318; 80 Am. St. Rep. 453; 51 L. R. A. 316; 46 Atl. 1074; Cooke v. England, 27 Md. 14; 92 Am. Dec. 618.