¶1Among the other points taken by the defendant in opposition to the motion is this, that the evidence did not show the note, upon which the suit is brought, to have been stamped as required by the revenue laws; while on the part of the plaintiff it is insisted that inasmuch as the note in evidence bears upon its face the proper stamp, purporting to have been duly canceled on the day of the date of the note, it is to be presumed to have been duly affixed on that day. .
¶2There appears to have been some misunderstanding of the evidence given upon this point. As the notes of the trial show the parties to the note, who left it at the bank, swear that the note was not stamped at all when they left it. The president of the bank with whom they left it, says he did *189not put the stamp on and don’t know who did, and the cashier of the bank shows that he did not put the stamp on. There is no evidence as to when the stamp was affixed, or that there were any other persons connected with the bank, than those sworn, who were authorized to stamp notes, or that the cancellation stamp is that of the bank, and the present holder is not asked whether the stamp was upon the note when it came into his hands.
¶3In this position of the evidence, the defendant was entitled to go to the jury upon the question of fact raised in regard to the stamp.
¶4The motion for judgment must therefore be denied and a new trial granted.
¶5The cause will be placed upon the calendar of the present term.