delivered the opinion of the court, May 10th 1875.
The note upon which this suit is brought bears date January 4th 1871, and was drawn by W. G. Spencer & Co. to their own *307order, payable four months after date, and by them endorsed to G-. B. Newton, one of the members of said firm, and by him endorsed to John F. Cottrell. Cottrell died on the 3d day of February 1871, and this note was found among his papers.
■ The defence exhibited nothing which, under ordinary circumstances, would put the holder of the note to proof of consideration. There was some evidence, however, that when the note came into Cottrell’s possession, it was unstamped, though a stamp was duly affixed thereto by the collector of the proper district, at the instance of the administrator, before suit brought. This fact was submitted to the jury, as evidence of the imperfection of the note as negotiable paper and to rebut the primá facie presumption that it had passed to the endorsee for a valuable consideration. Upon this evidence alone a verdict was rendered for the defendants. Now, how the want of a stamp could avail of itself to prove want of consideration, we cannot conceive. The provisions of the Act of Congress import no such effect as this. As is said by Mr. Justice Agnew, in the'case of the Turnpike Co. v. McNamara, 22 P. F. Smith 281, the Act of Congress did but “ stamp the instrument of evidence with a disqualification which prevented its use as evidence until the delinquent had paid his tax.” To the same effect are the cases of Tripp v. Bishop, 6 P. F. Smith 424, and Jones’s Appeal, 12 Id. 329. Now, as upon the trial, of this case, the note appeared to have been duly stamped by the officer qualified so to do, the bar upon it as evidence was removed, and it occupied the. same position, so far as the Act of Congress was concerned, ak though it had been stamped when made. Why, then, shall we go beyond that act and add a penalty not found therein ? But the ruling of the court below makes the want of a stamp, at the time of endorsement to the holder, not merely a curable irregularity, but also evidence to rebut the presumption of consideration. What is this but an additional penalty ? And of what avail is the curative provision of the statute, if the paper is so marred by the original default that it no longer of itself imports consideration ? We cannot subscribe to such an interpretation of the statute.
Had there been evidence of fraud or unfair dealing in the transfer of the paper, or of a want of consideration moving from Cottrell, this irregularity might have been adduced, as a link in the chain of testimony, to prove malo, fides, but standing alone it amounted to nothing.
Under no circumstances was the testimony of Spencer and Newton, two of the defendants, admissible. This testimony went to prove that the note was unstamped, or the stamp uncancelled when passed to Cottrell; as, however, this evidence rvas of matter occurring before his death and which, if alive, he might have rebutted by his own testimony, it comes within the proviso of the Act of *3081869, and should have been excluded. So that part of the declaration of Hemphill, the former administrator, which contains the „ allegation, “ that so far as he had seen or knew there was nothing in Cottrell’s books or papers to show that any consideration had been given for the note,” should also have been excluded as irrelevant.
We find nothing improper in the drawing of the jury from the struck list. The method pursued is one that, we believe, has never heretofore been doubted or called in question, and if it has arisen from an erroneous interpretation of the statute, as is contended, it is an error too long established for us now to correct. Qommunis error facit jus.
The judgment is reversed, and a venire facias de novo awarded.