At the time the note was issued, March 4th, 1866, the Revenue Law of June 30th, 1864, as amended by the Act of March 3d, 1865, was in force. Section 158 of t'he Act, when so amended, read as follows : “ That hereafter in all cases where the party has not affixed to any instrument required by the one hundred and fifty-first section of the Act of June 30th, 1864, or the schedule marked B, thereunto annexed, the stamp thereby required to be thereunto affixed at the time of making or issuing the said instrument, and he, or they, or any party having an interest therein shall be subsequently desirous of affixing such stamp to said instrument, he or they shall appear before the collector of the revenue of the proper district, who shall, upon the payment of the price of the proper stamp required by law, and of a penalty of fifty dollars, and where the whole amount of the duty denoted by the stamp required shall exceed the sum of fifty dollars, on payment also of interest, at the rate of six per cent, on said duty, from the day on which such stamp ought to have been affixed, affix the proper stamp to such instrument, and note upon the margin of said instrument the date of his so doing, and the fact that siich penalty has ‘ been paid, and such instrument shall thereupon be deemed and held to be as valid, to all intents and purposes, as if stamped when made or issued; and, provided further, that when it shall appear to said collector, upon oath or otherwise, to his satisfaction, that any such instrument has not been duly stamped at the time of making or issuing the same, by reason of accident, mistake, inadvertence, or urgent necessity, ■ and without any willful design to defraud the United States of the stamp duty, or to evade or delay the payment thereof, then and in such case, if such instrument shall, within twelve calendar months after the making or issuing thereof, be brought to the said collector of revenue to be stamped, and the stamp duty chargeable thereon shall be paid, it shall be lawful for the said collector to remit the penalty aforesaid, and to cause such instrument to be duly stamped.”
When the amendment was adopted, the only authority contained in the Act whereby an instrument unstamped when issued could *136afterwards be lawfully stamped, was found in Section 163, which applied exclusively to transactions occurring before the passage of the Act — June 30th, 1864. This distinction, in a measure, was abolished by the last two provisos above quoted, so that any instrument might be stamped by permission of the Tax Collector, upon payment of the stamp duty and the penalty prescribed in the Act. By the last proviso, when satisfactorily shown to such officer that the stamp had been omitted without- any willful design to defraud the revenue, or to evade or delay the payment thereof, he might remit the penalty, and upon payment of the tax, cause the instrument to be stamped within twelve months after it was made or issued. This clause was extended by Act of July 13th, 1866, so that in such a case the stamping might be done at any time before the first of August, 1867.
It was shown at the trial, as stated in the opinion of the Chief Justice, that the note was not stamped when issued; that in November, 1866, Torreyson, the maker thereof, when requested to do so by the administrator, affixed to it the requisite amount of stamps, but without authority of the Revenue Collector of the District, and that the omission of the stamp in the first instance was not with an intent to evade the provisions of the Act. These facts,- with the pleadings, bring up the main question in the case, whether such stamping was sufficient to entitle the plaintiff to maintain an action upon the note.
Upon the construction given to the amended law, I concur in the conclusions reached in the foregoing opinion. The correct view, in my judgment, is there taken, “ that it was the intention of the law to make all instruments, not properly stamped when issued, invalid,” and none such could become valid except in the way pointed out in Section 158. The authority to permit such an instrument to be stamped is lodged exclusively with the Revenue Collector; and he is furthermore constituted the sole judge as to whether the stamp was omitted “ with intent to evade the provisions of the Act.” Primarily, in all cases of an unstamped instrument the penalty attaches, and the amount thereof, in addition to the stamp duty, must be paid to the Collector before it can be lawfully stamped, subject, however, to a remission of such penalty by the' *137officer within a given time, upon satisfactory cause being shown. The law, by conferring this authority on the officer, excludes the idea that another person may do it; whence it follows, that the act of Torreyson, in affixing the revenue stamp, was wholly unauthor- . ized, and the instrument left as if never stamped, and therefore “ invalid and of no effect ” under the law. But it is claimed that ' the note may be treated as executed on the day of such stamping —November, 1866. This proposition the majority of the Court have thought proper — and perhaps correctly so — to consider in the light it was presented on the argument. In that view of it, I shall express no opinion, as I think the question is disposed of in our construction of Section 168.
Allow that the administrator, under existing circumstances, has the same right to maintain an action on the note, as he would have if the entire transaction had occurred between Torreyson and Mrs. 4 Wayman; that Torreyson had stamped the note and redelivered it to Mrs. Wayman under precisely the same circumstances; yet the principal objection is not removed — that is, that the note ivas never lawfully stamped. The omission of the stamp rendered the note invalid and of no effect, and the penalty at once attached. The consequence of such infraction of the law could only be avoided- in the way pointed .out by the law. A subsequent stamping and redelivery by the party was not a compliance with, but an attempted evasion of the law, and neither relieved from the penalty nor gave validity to the transaction. There was no pretense of making a new contract, as the parties were at liberty to do by the execution and acceptance of a new note; but the acts done simply show an intention to legalize a past and invalid -contract in an unlawful and unauthorized manner, and of a consequence, no new or additional legal obligation was created. •
The Revenue Act had opened the way to the parties to consummate their first intent — to make valid the obligation of the maker of the note to pay it according to its terms. The way pointed out was not pursued, and whatever may be the equities existing between Torreyson and the estate of Mrs. Wayman, it is not the province of the Court to set aside a certain provision of the tax-law for the purposes of such inquiry.
*138I have considered this question solely in tbe relation it bears to the Federal stamp laws which apply to the facts in this case, as these are the only legitimate matters proper to be discussed by counsel on the hearing, or to be passed on by the Court at this time. The authorities, English and American, including the cita- . tion from 2d Parsons on Bills and Notes, which have been referred to by appellant, have the least possible bearing upon the questions in this case. The New York, Massachusetts, Wisconsin and California cases, with some others not included in the references made, whether opposed or not to a former decision of this Court,, arise under a different law from the Act of 1865. And when Judge Parsons wrote his admirable treatise, the clause referred to had no application to the peculiar provisions of an act not then passed. This is a peculiar statute, harsh and exacting, perhaps to ah unwonted degree, but we must accept it according to its terms, and give it a construction consistent with its obvious intent and mean- „ ing, guided by the decisions of other courts and expressions of law writers only so far as the reason thereof appears. In this instance - we have no precedents exactly in point, and must necessarily be guided by our own view of the question.
Upon the argument appellant’s counsel complained of certain alleged irregularities in the clerk’s office, by which he was prevented from taking a default and judgment when entitled to it. I have looked into the record, but find nothing by way of a statement or bill of exception covering the ground of complaint in this particular, and therefore it cannot be inquired into on this appeal.
I concur in the judgment of affirmance.