MAcDONALD,
C.J.B.C.:—The
action
is
brought
to
recover
the
amount
of
certain
revenue
stamps
which
it
is
claimed
the
defendant
wrongfully
omitted
to
affix
to
stocks
and
bonds
sold
by
him
as
a
broker.
Part
VII
of
the
Special
War
Revenue
Act,
R.S.C.
1927,
ce.
179,
is
relied
upon
to
fix
liability
on
the
broker
for
the
failure
to
affix
the
stamps.
Sec.
58
of
said
Part
VII
reads:
"
‘58.
No
person
shall
sell
or
transfer
the
stock
or
shares
of
any
association,
company
or
corporation,
or
any
bond
other
than
a
bond
of
the
Dominion
of
Canada
or
of
any
province
of
Canada
by
“
(a)
agreement
for
sale;
"‘(b)
entry
on
the
books
of
the
association,
company
or
corporation
;
“(c)
delivery
of
share
certificates
or
share
warrants
or
bond
endorsed
in
blank
or
payable
to
bearer;
or
“(d)
any
other
method
whatsoever
;
unless
in
respect
of
such
sale
or
transfer
there
is
affixed
to
or
impressed
upon
the
document
evidencing
the
ownership
of
such
stock
or
shares
or
bond,
or
a
document
showing
the
transfer
or
agreement
for
the
transfer
thereof,
an
adhesive
stamp,
or
a
stamp
impressed
thereon
by
means
of
a
die,
of
the
value
of
three
cents
for
every
one
hundred
dollars
or
fraction
thereof
of
the
par
value
of
the
stock
or
shares
or
bond
sold
or
transferred.
‘
‘
The
defendant
negotiated
the
sale
of
the
securities
in
question
as
agent
or
broker
only.
He
had
himself
no
interest
in
them
and
resists
inter
alia
payment
on
this
ground.
By
sec.
59
it
is
provided
that,
‘‘In
case
where
the
evidence
of
sale
or
transfer
is
shown
only
by
the
books
of
the
company
the
stamp
shall
be
placed
or
impressed
upon
such
books’’.
Sec.
63
provides
a
penalty
of
$500
for
the
violation
of
the
provisions
of
this
Part.
But
this
is
not
a
proceeding
for
penalties,
nor
for
damages
for
not
affixing
the
stamps.
Sec.
108
makes
all
taxes
or
sums
payable
under
this
Act
recoverable
by
His
Majesty
as
a
debt;
also
the
penalties.
By
sec.
108(3)
every
penalty
imposed
by
this
Act
for
which
no
provision
for
recovery
thereof
is
by
the
Act
provided
may
be
sued
for.
Do
these
provisions
of
the
Act
render
the
broker
liable
to
be
sued
by
His
Majesty
The
King
in
debt
for
his
failure
to
affix
stamps?
It
is
my
opinion
that
they
do
not,
and
this
is
the
only
question
I
need
consider
in
this
case.
The
opening
words
of
sec.
58
are
wide
enough
standing
alone
to
include
a
broker
but
a
broker
is
not
the
seller
or
transferor
in
the
legal
sense.
He
brings
about
the
sale
or
transfer,
but
his
principal
is
the
seller
or
transferor.
There
is
nothing
in
the
Act
making
the
broker
liable
as
principal.
There
are
indications
to
the
contrary
as
where
the
entry
of
sale
is
to
be
made
on
the
books
of
a
company
the
stamps
are
to
be
affixed
to
the
book.
Then
again
the
general
law
does
not
render
the
agent
liable
on
a
sale
of
his
principal’s
property.
The
act
of
the
broker
or
agent
is
in
law
the
act
of
the
principal
and
to
render
the
agent
liable
for
the
debt
of
the
principal
there
must
be
special
warrant
for
it
in
the
Act
which
is
absent
here.
See.
59(3)
is
significant.
It
provides
that
where
the
transfer
is
by
delivery
of
the
certificate
or
bond
in
blank
or
payable
to
bearer
‘‘there
shall
be
made
and
delivered
by
the
seller
to
the
buyer
a
bill
or
memorandum
of
such
sale
or
transfer
to
which
the
stamp
shall
be
affixed
or
impressed’’.
This
to
my
mind
indicates
that
the
broker
is
not
to
be
considered
as
the
seller
but
merely
the
agent
for
bringing
about
the
sale.
See
Charles
H.
Meyer’s
Law
of
Stock
Brokers
and
Stock
Exchanges,
1932
Supplement,
p.
13,
where
he
cites
Connelly
v.
Glenny
(1931)
233
N.Y.
App.
Div.
198
at
p.
199:
"The
relation
which
existed
between
plaintiff
[customer]
and
defendants
[brokers]
was
that
of
principal
and
agent,
and
not
of
buyer
and
seller.
Defendants
were
not
selling
their
own
stock;
they
were
acting
as
brokers
for
the
plaintiff.’’
Additional
American
authorities
are
cited
there
but
I
need
not
quote
them.
The
law
of
our
own
country
is
plain
that
an
agent
acts
only
for
his
principal
not
for
himself.
In
my
opinion,
therefore,
the
agent
is
not
liable
in
this
action
for
the
failure
to
affix
the
stamps
and
this
appeal
must
be
dismissed.
It
is
not
necessary
to
refer
to
the
other
questions
argued.
Martin,
J.A.:—This
is
an
action
to
recover
"‘as
a
debt
due
to
His
Majesty’’,
under
sec.
108
of
the
Special
War
Revenue
Act,
the
sum
of
$499.48,
being
the
amount
of
stamps
which
it
is
alleged
that
the
defendant,
a
stockbroker,
should,
pursuant
to
sec.
58,
have
affixed
to,
or
had
impressed
upon,
certain
shares
and
stocks
at
the
time
he,
as
agent
for
the
owner
thereof,
sold
them
on
the
floor
of
the
Vancouver
Stock
Exchange
to
various
purchasers:
that
section
declares,
relevantly,
that
"‘No
person
shall
sell
or
transfer
the
stock
or
shares
of
any
association,
company
or
corporation
.
.
.
unless
in
respect
of
such
sale
or
transfer
there
is
affixed
to
or
impressed
upon
the
document
evidencing
the
ownership
of
such
stock
or
shares
.
.
.
an
adhesive
stamp,
or
a
stamp
impressed
thereon
by
means
of
a
die,
of
the
value
of
three
cents
for
every
one
hundred
dollars
or
fraction
thereof
of
the
par
value
of
the
stock
or
shares
or
bond
sold
or
transferred.’’
This
section
does
not
declare
that
any
tax
or
sum
is
payable
by
any
person
or
party
to
the
sale
or
transfer,
whether
vendor,
or
purchaser,
or
corporation
making
the
transfer
in
its
"
4
books”
(cf.
secs.
59,
60),
nor
does
it
declare
who
shall
affix
or
impress
the
stamps,
but
simply
prohibits
the
selling
or
transferring
of
unstamped
stocks
and
shares,
and
the
penalty
for
violation
of
this
prohibition
is
to
be
found
in
sec.
63,
viz.,
"‘Any
person
who
violates
any
of
the
provisions
of
this
Part
shall
be
liable
to
a
penalty
not
exceeding
five
hundred
dollars’’.
Then
subsecs.
2
and
3
of
see.
108
provide
for
the
recovery,
by
nominated
civil
process,
of
"
‘
every
penalty
incurred
for
any
violation
of
the
provisions
of
this
Act’’,
and
it
was
not
disputed
that
said
civil
proceedings
could
be
brought
to
recover
the
amount
of
any
penalty
that
had
been
duly
inflicted
upon
anyone
who
had
violated
said
prohibition,
and
it
is
beyond
question,
to
my
mind,
that
if
there
were
no
more
in
the
Act,
said
sections
would
conclude
the
matter
in
favour
of
the
defendant-respondent.
But
the
appellant
invokes
the
first
subsection
of
said
sec.
108
and
submits
that
the
failure
to
comply
with
the
said
prohibition
is
covered
by
the
opening
words
thereof,
viz.,
4
‘All
taxes
or
sums
payable
under
this
Act
shall
be
recoverable
.
.
.
as
a
debt
due
to
.
.
.
His
Majesty’’,
but,
with
every
respect,
I
am
unable
to
understand
how,
in
the
absence
of
any
direction
that
a
tax
shall
be
paid
by
a
nominated
person,
anyone
can
be
fastened
with
the
necessary
legal
liability
to
pay
it
to
anybody,
and
still
less
can
I
understand
how
the
breach
of
a
duty
not
to
sell
or
transfer
property
"‘unless’’
(see.
58)
in
the
manner
directed
can
be
converted
into
‘‘taxes
or
sums
payable’’
to
the
Crown,
in
the
absence
of
express
language
bringing
about
such
an
incongruous
result.
Therefore,
whatever
questions
may
otherwise
be
involved,
in
my
view
the
statute
as
it
originally
stood
as
applicable
to
this
case,
and
quite
apart
from
any
inference
to
be
derived
from
later
amendments,
does
not
authorize
the
bringing
of
the
present
action,
and
so
the
judgment
below
dismissing
it
should
be
affirmed
and
this
appeal
dismissed.
I
note
the
cited
case
of
The
King
v.
Walker
&
King
Ltd.
(1921)
61
D.L.R.
283,
only
to
say
that
the
language
of
the
statute
there
in
question
differs
substantially
from
that
before
us
and
therefore
I
do
not
rely
upon
it,
though
in
its
general
reasoning
it
affords
some
support
to
the
respondent.
MCPHILLIPS,
J.A.
(dissenting)
:—In
my
opinion
the
statute
law
is
definite
and
precise
that
the
stamp
tax
is
payable
on
sales
or
transfers
of
stock,
bonds,
etc.
(sec.
58,
Special
War
Revenue
Act).
Here
admittedly
the
respondent
did
effect
sales
of
stock
and
failed
to
affix
the
stamps
thereon
as
called
for
by
the
statute.
The
contention
is
that
being
a
broker
only
he
is
not
answerable
therefor.
I
cannot
follow
the
submission
made
that
the
broker
is
not
a
"‘person’’
within
the
purview
of
the
Act
(see.
58,
quoted
supra).
The
broker
(the
respondent)
made
the
sales
and
in
his
examination
at
the
trial
the
following
questions
were
put
and
the
following
answers
made
:—
"‘Q.
Did
you
make
sales
on
which
the
stamp
tax
under
the
Act,
mentioned
in
the
pleadings
would
have
been
$499.48
if
they
were
sales—if
they
were
sales
within
the
meaning
of
the
Act?
A.
I
would
say
I
did
yes.
If
they
were
sales.
Q.
And
those
sales
were
made
on
the
floor
of
the
Vancouver
Stock
Exchange?
A.
Vancouver
Stock
Exchange,
yes,
because
I
could
not
make
them
anywhere
else
Mr.
Dixon,
or
I
would
be
fined.
Q.
On
the
records
of
the
Stock
Exchange
there
would
be
nothing
to
show
that
they
were
different
from
any
other
sale,
I
take
it?
A.
I
don’t
suppose
so,
no.
Q.
But
you
did
not
pay
on
those
sales
which
you
say
you
made
as
agent
for
Miller
Court
&
Co.?
A.
No,
sir.
Q.
Do
you
remember
receiving
any
demands
for
payments
of
these
taxes
from
the
Department?
A.
Yes,
I
do.
Q.
Have
you
got
those
letters?
A.
No.
Q.
Did
Miller
Court
give
you
any
protection
by
way
of
a
letter?
A.
Yes,
I
said,
I
just
told
you
I
had
a
letter
from
Miller
Court.
Q.
You
have
a
letter
from
Miller
Court
protecting
you
for
the
amount
of
stamp
tax
which
you
might
be
liable
to
pay?
A.
Yes.
Q.
On
transactions
made
for
them?
A.
That
the
Government
might
hold
me
liable
for.
Q.
That
the
Government
might
hold
you
liable
for?
A.
Yes.
Q.
In
connection
with
those
transactions?
A.
Yes.
Q.
So
then
it
all
boils
down
to
this:
that
you
admit
you
made
sales?
A.
I
acted
as
Miller’s
agent,
yes,
that
is
what
I
did.
Q.
You
acted
as
Miller’s
agent,
and
at
least
you
will
go
that
far
as
to
say
that
you
made
sales
as
Miller’s
agent?
A.
That
is
right.
Q.
And
that
the
sum
of
$499.48
would
be
owing
if
you
had
been
acting
as
a
broker
for
yourself?
A.
Well,
I
imagine
that
is
right,
yes.”
In
my
opinion
upon
this
evidence
and
the
application
of
sec.
108
of
the
Act
the
money
value
of
the
stamps
constituted
a
debt
due
by
the
respondent
to
His
Majesty
and
the
action
was
rightly
brought
and
maintainable
against
the
broker.
Sec.
108
in
part
reads
as
follows:
“108.
All
taxes
or
sums
payable
under
this
Act
shall
be
recoverable
at
any
time
after
the
same
ought
to
have
been
accounted
for
and
paid,
and
all
such
taxes
and
sums
shall
be
recoverable,
and
all
rights
of
His
Majesty
hereunder
enforced,
with
full
costs
of
suit,
as
a
debt
due
to
or
as
a
right
enforceable
by
His
Majesty,
in
the
Exchequer
Court
or
in
any
other
Court
of
competent
jurisdiction.
.
.
.’’
It
is
pressed
that
because
the
Parliament
of
Canada
substituted
by
an
amendment
in
1930
(c.
43,
sec.
1)
a
new
section
and
repealed
sec.
58
as
in
the
principal
Act
it
demonstrates
that
sec.
58
as
originally
enacted
was
ineffective.
With
this
view
I
cannot
agree—judgment
must
go
on
the
then
existent
statute
law
and
I
consider
that
it
was
in
its
terms
effective
and
covers
the
present
case.
No
doubt
amendments
at
times
are
made
out
of
abundance
of
caution
but
they
cannot
be
considered
by
the
Courts.
Every
case
must
stand
or
fall
upon
the
existent
statute
law.
There
is
no
merit
in
this
appeal—the
broker
was
aware
of
the
liability
and
took
steps
to
protect
himself—he
contravened
the
law.
I
am
unable,
with
great
respect
to
the
learned
trial
Judge,
His
Honour
Judge
Ellis,
to
arrive
at
any
other
conclusion
than
that
the
case
of
the
Crown
was
fully
made
out
and
I
would
therefore
allow
the
appeal.
MACDONALD,
J.A.:—I
would
dismiss
the
appeal.
Appeal
dismissed.
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