Opinion of the court.

contract of sale, which failed afterwards to be consummated, in consequence of the vendor's inability to make title. It is true, it appeared in that case the purchase-money had been paid, and by the use of it the vendor might have been regarded as compensated for the defendant's occupation, yet C. J. Mansfield said: "A contract cannot arise by implication of law under circumstances the occurrence of which neither of the parties ever had in contemplation." The same principle was asserted in Rumball v. Wright.* And in the later case of Winterbottom v. Ingham,† the same doctrine was declared, though the purchase-money had not been paid, and the reason given was, that when the defendant was let into possession, both parties understood that he made no promise to pay rent. The holding was in the expectation that title would be made and the purchase completed. There are other decisions to the same effect. It is true that in Howard v. Shaw, it was held that after a contract of sale had been rescinded, an action for use and occupation might be maintained against a defendant who had remained in possession with the consent of the owner, but without any title or contract for the purchase of the land, and that a recovery might be had for the possession retained after the contract of purchase was terminated. But he was not held liable for rent during the time the contract subsisted, and he could not have been for the obvious reason that the contract was inconsistent with any understanding that rent was to be paid. And no case can be found, it is believed, in which one who entered in virtue of an agreement or understanding that he was to be a purchaser, has been held liable in an action for the use aud occupation of the land, if the purchase was actually concluded.

It is contended, however, on behalf of the present plaintiff, that the contract of purchase under which, or in the expectation of the completion of which the United States entered, and under which they continued to hold until the

* 1 Carrington & Payne, 589. 7 Adolphus & Ellis, New Series, 611. 8 Meeson & Welsby, 118.

Opinion of the court.

deed was made and the purchase-money was paid, was invalid; that until the act of Congress of 1866 was passed, no executive department had authority to purchase the island, and that, therefore, there was no legal contract for the purchase in existence until the deed was made and the price paid. But if this be conceded, it can make no difference. Let it be that neither party could have enforced the parol arrangement, it is still true that it was utterly inconsistent with any understanding that the parties contemplated the one was to pay and the other was to receive rent for the occupation of the property. The understanding of the parties is the material thing. Unless it was in their contemplation that compensation, other than the price stipulated to be paid for the transfer of the title, should be made, as C. J. Mansfield said, in Kirtland v. Pounsett, a contract to pay rent cannot arise by implication of law.

The plain common sense of the case is, that if the plaintiff was entitled to anything beyond what he has received, it was to interest on the purchase-money from the time the possession was taken until the price of the sale was paid. That he should have demanded before he delivered his deed. Not having done so, but having accepted the principal and consummated the sale, he cannot now assert that the relation in which his vendee stood to him was that of a tenant to a landlord, and recover interest in the shape of damages for the breach of an implied promise to pay rent for the use and occupation of the island. There is no room in the facts found by the Court of Claims for the implication of any such promise.

JUDGMENT AFFIRMED.

Statement of the case.

UNITED STATES v. ISHAM,

1. The words "memorandum, check," in that part of the schedule of instruments required by the statute of June 30th, 1864 (13 Stat. at Large, p. 298, 158), to be stamped, which in the printed statute-books are printed with a comma between them, should read, "memorandum-check," with a hyphen instead of a comma.

2. In settling whether an instrument should be stamped or not, regard is to be had to its form, rather than to its operation. Though it may be a device to avoid the revenue acts, and though its operation may have the effect of avoiding them, yet if the device be carried out by means of legal forms, it is subject to no legal censure.

ON certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Michigan; the case being thus:

The act of June 30th, 1864, "to provide internal revenue to support the government," &c.,* requires certain instruments, specified in a schedule which it contains, to be stamped. The schedule is as follows:

BANK-CHECK, draft, or order for the payment of any sum of money whatever, drawn upon any bank, banker, or trust company, or for any sum exceeding $10 drawn upon any other person or persons, companies or corporations, at sight or on demand,

Bill of exchange (inland), draft, or order for the payment of any sum of money not exceeding $100, otherwise than at sight or on demand, or any promissory note (except bank notes issued for circulation, and checks made and intended to be forth with presented, and which shall be presented to a bank or banker for payment), or any memorandum, check, receipt, or other written or printed evidence of an amount of money to be paid on demand, or at a time designated, for a sum not exceeding $100,

And for every additional $100, or fractional part thereof in excess of $100,

2 cents.

This statute being in force, the United States filed, in 1871, a criminal information in the court below against E. B. Isham, for issuing without a stamp and with intent to evade

13 Stat. at Large, 158, p. 298, amended by the act of July 18th, 14 Id. 144.

1866;

Statement of the case.

the provisions of the above-quoted act, a paper in the form of a draft drawn upon one C. J. Canda. The paper, which was attached to and made part of each count of the information, was in this form:

[V.]

IRON CLIFFS COMPANY.

[FIVE.]

NEGAUNEE, MICH., Jan. 3d, 1870.

[1190]

Pay to the order of ......E B. Isham, Supt.,......or beurer,

Five Dollars,

Value received, and charge to account of

To C. J. CANDA, ESQ., New York.

Countersigned:

E. B. ISHAM.

E. S. GREEN, Clerk.

It appeared from the testimony offered by the government, that the Iron Cliffs Company was a corporation of Michigan, situated at Negaunee, in the State just named, and engaged in mining iron-ore and in manufacturing pigiron. It had an office at Negaunee, where its business was carried on, and a head office in New York, where its board of directors met, and its funds were kept. Isham was superintendent of the works at Negaunee, and resided there. Canda was treasurer of the company, and resided in New York. The company had been in the practice of issuing paper like the instrument above set forth, in payment for labor or other debts due at the mine since January, 1868, nearly all payments of balances due for labor having been made since that time and up to 1871, when the information was filed, in it. The amount issued annually since that time had been about $100,000. The blanks were sent to Isham from New York, and signed by him as drawn. The denominations issued were of $1, $2, $3, $5 and $10. When the Iron Cliffs Company began to issue this paper, there were hardly any facilities for getting currency into the country, except taking it through one hundred and twenty miles of staging, and through a wilderness chiefly; and when it was issued, it, to some extent, went into circulation, and answered the purpose of a local currency. It was taken at a store, in which the company was interested, in payment for

Statement of the case.

goods; and by all the banks and banking-houses in that region, and sometimes paid out by them on checks. But when in the course of business it came into the hands of a bank or banker, or a merchant, it was generally retained until a considerable amount of it was on hand-say from $1000 to $2000-and then either sent to New York by express for redemption, or Isham took it up and gave to the holder a draft on New York for the amount. When Isham took this paper in this way, by giving the holder a large draft for it, he frequently reissued it, or paid it out again in the course of the company's business at the mine; but when it was finally paid in, New York, it was cancelled and de-. stroyed.

On this and similar evidence the following questions arose, concerning which the defendant requested the court to instruct the jury in his favor, and for a verdict of acquittal:

"1st. Whether the instrument was on its face subject to be stamped?

"2d. Whether the evidence tending to prove that Isham was superintendent of the Iron Cliffs Company, and drew the instrument in that capacity, or that Canda was the treasurer of the said company, and the instrument was drawn upon him in that capacity, or that the said paper was drawn in the course of the company's business, was relevant and admissible?

"3d. Whether, if the paper in question was made and issued with the design that it should be used as a local circulating medium, and was actually used by the holders as such, it thereby became subject to be stamped, and whether the evidence given by the prosecution, tending to prove these facts, was relevant and admissible?

"4th. Whether, assuming every fact which the evidence in support of the prosecution tended to prove, the defendant was guilty of the offence charged?

66

5th. Whether the information in this case sufficiently charged any offence under the laws of the United States?"

And the following further question, upon which the district attorney requested the court to charge in favor of the prosecution: