DISSENTING OPINION OF
GALBRAITH, J.I concur in the order overruling the motion for rehearing for the reason that the grounds on which it is based are not well taken. However, I am convinced, on further investigation, tint •there was an error in the former judgment that the court of its own motion should correct.
I understand that there are some propositions developed in the construction of the War Revenue Act of 1898, and the earlier Acts of a similar character, that may now be said to 'c well established by judicial authority, namely, (1) that a note issued without a stamp; while that part of the Act requiring notes to be stamped was in force, is not void unless the failure to stamp was with intent to defraud the revenue and avoid paying the tax, and (2) that no> presumption of fraudulent intent arises from a mere failure to stamp an instrument at the date of its ■issuance. Harvey v. Wieland, (Iowa) 88 N. W. 1077; Steeley’s Creditors v. Steeley et al., (Ky.) 64 So. W. 642, 643; Jones v. Western M’f'g, Co., (Wash.) 67 Pac. 586; Cassidy v. St. Germain, (R. I.) 46 Atl. 35; Rheinstrom v. Cone, 26 Wis. 163; Latham v. Smith, 45 Ill. 29; McGovern v. Hoesbeck, 53 Pa. St. 176, 179; Grant v. The Connecticut Mutual Life Ins. Co., 29 Wis. 125, 135; Desmond v. Norris, 92 Mass. 250; (3) that where the failure to stamp was through mistake or inadvertence; the instrument may be post-stamped within twelve months after its date, without the payment of penalty, in the discretion of the Collector of Internal Revenue of the District, and at any time *686after twelve months by the payment of the penalty; see Section 13, Chapter 806, Act of March 2, 1901, 31 U. S. St. L. p. 941. Harvey v. Wieland, and Jones v. Western M’f'g. Co. supra; and (4) that the failure to cancel the stamp as required by the Act does not affect the validity of the instrument or its admissibility in evidence. Doffin v. Guyer, 39 Ind. 216; Goodwin v. Wanz, 25 id. 101; Adams v. Dole, 29 id. 273; Long v. Spencer, 78 Pa. St. 303, 307; Miller v. Wentworth, 82 id. 280, 287; St. Louis and C. R. R. Co. v. Eakins, 30 Iowa 279; Union Agricultural and Stock Association v. Neill, 31 id. 95; De Armond v. Dubose, 22 La. Ann. 131 (2 AM. Rep. 718); Desmond v. Norris, 92 Mass. (10 Allen) 250; Shultz v. Herndon, 32 Texas 390; Jacobs v. Cunningham, 32 id. 774; Chaplin v. Horton, 36 Vt. 684; Lerch v. Snyder, 112 Pa. St. 161, 167.
While the record does not show that the Magistrate made anv finding on the question of fraudulent intent, I presume that lie found, as he might have done, an intent to defraud the revenue, in the one case-, from the use of cancelled stamps, — the cave where the stamps bore the cancel mark of Bishop & Co., of a year prior to date of the note. In that case the judgment for the defendant ought to be sustained. In the other case where the correct amount of stamps were attached to the note and the cancellation was with cross, made with pen and ink, the judgment should have been for the plaintiff. The failure to cancel the stamps as required by the law did not render the note void or inadmissible in evidence. No intention to defraud could bo inferred from the mere failure to cancel the stamps and to date and initial the cancellation. The judgment for the defendant in that case was error, and should be set aside.
■ The former judgment rendered in these cases ought to- be modified as follows: The appeal in the one case, that where the stamps were cancelled with pen, should be sustained and the cause remanded to the District Magistrate with direction to set aside the judgment for the defendant and for further proceedings.