Makainai v. Goo Wan Hoy

OPINION OF THE COURT BY

FREAR, C.J.

Two grounds are relied on iu support of these motions for a rehearing.

One is that the decision, ante, 601, is in conflict with controll*684ing decisions elsewhere that were not called to the attention of the court at the former hearing. The numerous decisions now relied on do not appear to be controlling on this point.

The other ground is that the portion of the Federal statute on which the decision was based has been repealed. This point was suggested by the court at the former hearing and argued by counsel for the defendant in their brief, and was considered by the court, but, as was the case with a number of other questions not then or now presented by counsel, was not touched upon in the opinion for the reason that counsel for the plaintiff did not rely upon them. One answer to this point is that the parts of the statute on which the former decision was based had not been repealed, namely, Sections 1, 13 and 14 of the Act of 1898 (30 Sts. at L. 448). See Edeck v. Ranuer, 2 Johns. 423; Leavitt v. Leavitt, 4 Me. 161. The provision that required stamps on future instniments had been repealed, but the provisions that imposed penalties, made instruments invalid or inadmissible as evidence until stamped, and that provided how they should be stamped afterwards if they were not stamped originally, had not been repealed.

Just what view the District Magistrate took, it is difficult to say from the meager record sent up. He might have found in one case a.t least that the omission to stamp was “with intent to evade” the law. But let us assume that he found in each case merely that the notes were not stamped when made. There is sufficient evidence to sustain such a finding. They would then be inadmissible as evidence under Sections 1 and 14 of the Act until they were stamped on application to the Collector under the provisions of Section 13; but they had not been so stamped, and no motion was made for a continuance for the purpose of having them so stamped.

It is true that decisions can be found that hold that documents not originally stamped can be stamped afterwards either in the presence of the court or out of court, as well as before the Collector. But those decisions are either based on former statutes differently worded, or have been so decided inadvertently on the supposition that the present statute was the same as the earlier *685statutes. Other decisions are to the effect that under statutes like the present the method provided in Section 13 is exclusive, and such is our opinion. For a review of the changes in the statutes and for decisions on this point under the various statr utes, see subdiv. V. a. 1 of note in 48 L. R. A. 314. But this, point is not raised even on these motions for a rehearing.

Add & Johnson and Hwnphreys & Watson for plaintiff. Holmes •& Stanley and J. H. Knight for defendant.

The motions for a rehearing; are denied.