Bills and TiABLD^poststamped. It will be observed that the answer does not aver that plaintiff had any knowledge of the alleged non-delivery of the note, nor of any of the other matters stated, nor that he received it after due. *
While the answer alleges generally that the note was never issued, it proceeds to state the facts justifying, in the opinion of the pleader, such conclusion. And to these we must look in judging of the sufficiency of the defense. Thus construed, the answer sets up fraud by the payee, and that the note was unstamped when made and signed. *66In the hands of an innocent holder the first defense could not, of course, avail. This is not claimed. 1 Par. N. & B. 219, 280.
Then, as to the want of the stamp. The question is a new one in our courts, and not free from difficulty. The subject is discussed by Mr. Parsons in his excellent work on contracts. 3 Par. on Con. 313, 314, 315, 316. The rule in England is, that if there is nothing on the face of the instrument to show that it was post-stamped, it, being negotiable, will be good in the hands of an indorsee or holder for value, who received it in ignorance of the fact that it was not stamped until after issued. Wright v. Riley, Peake, 173; Green v. Davis, 4 B. & C. 235. Mr. Parsons (3 N. & B. 316) doubts whether the courts of this country would go this far, and thus allow the policy of the law to set aside the express provision that a note issued without a stamp shall be “ invalid and of no effect.” Tlie reasoning, however, in favor of the rule in England, strikes us as fair, just, and legitimate. It accords with the duty of the maker, protects the government, and, in consonance with the principles of the law-merchant, protects the holder of such paper from those defenses that do not arise upon its face.
Affirmed.