Page:Federal Reporter, 1st Series, Volume 8.djvu/713

DOWELL V. APPLEGATK. �that the remaining property described in the bill as having been con- veyed by J. A. to his chiidren in fraud of his creditors and still in their possession, is sufficient to isatisfy the plaintiff's claim. By the equity rule 35, the, allo wance of an amendment to a bill,. after a demurrer thereto bas been sustained, is in the discretion of the court. Stated briefly, the proposed ainendment is to the effect : �(1) That the deed in question was made and delivered with the intent to defraud the United States ; (2) that it was made and delivered by the grantor, and accepted by the grantees, with the intent to evade the provisions of the internai revenue acts ; and (3) that the Drains caused said deed to be made and delivered, and used the same, by having it recorded, with intent to evade said acts, and with intent to defraud the United States ont of a stamp duty of a value of $1.50. �The allegation that the deed was either made, delivered, accepted, or nsed with the intent to defraud the United States, is false upon its face. The United States had uo interest in this property, or claim upon the grantor, J. A., or W. H. H. A., that would render a convey- anee of it to the Drains, or any one else, fraudulent as to it. What the pleader probably had in his mind, but failed to express or allege, is that the deed was made, delivered, accepted, and used without being duly stamped, with intent to evade, defraud, etc. To stamp or omit to stamp a deed is something apart from, and in addition to, the making, delivering, accepting, or using the same ; and an allega- tion that either of these things was done with intent to defraud the United States, or evade its revenue laws, is not an allegation that such deed was made, delivered, accepted, or used without being duly stamped, and is, therefore, immaterial in this suit. �It is also immaterial with what intention the Drains accepted this deed. Section 158 of the internai revenue act (13 St. 293 ; 14 St. 142) does not make any account of the intention with which a deed is "accepted" or received by the grantee. But in the case of a "bill of exchange, draft, order, or promissory note for the payment of money," it does provide that if such instrument is accepted, negotiated, or paid without being duly stamped, and with the intent to evade the provisions of the same act, it shall be invalid. The r^ason of this dis- tinction is apparent. Whoever aceepts a bill of exchange thereby becomes an active party thereto. In effect and to that extent he makes or emits it,— gives it a new life and circulation, — and the inten- tion with which he does so, so far as the stamp duty is concerned, is placed by the stamp act in the same oategory as that of the maker. ��� �