Supreme Court of Canada
King v. The Ship Emma K and Barrett, [1936] S.C.R. 256
Date: 1936-05-27
His Majesty The
King (Plaintiff) Appellant;
and
The Ship EMMA K,
Her Goods, Boats, Tackle, Rigging, Apparel, Furniture, Stores and Cargo,
and John Barrett (Defendants) Respondents,
1935: October 29; 1935: November 7; 1936:
May 27.
Present at Hearing:—Duff C.J. and Rinfret,
Lamont, Davis and Kerwin JJ. Lamont J. died before delivery of judgment.
ON APPEAL FROM THE EXCHEQUER COURT OF
CANADA, BRITISH COLUMBIA ADMIRALTY DISTRICT
Evidence—Shipping—Crown claiming forfeiture
of ship, under s. 67 (2) of Merchant Shipping Act, 1894 (Imp.), because of
alleged false statement of citizenship in declaration of
ownership—Authenticated photostatic copy of certificate of naturalization in
foreign country to person of same name as person making declaration of
ownership—Inadmissibility of comparison of handwriting of citizen’s signature
on said copy of certificate of naturalization with that of signature on
declaration of ownership, to prove identity—Failure to object to admissibility
at trial.
The Crown claimed forfeiture of a ship, under
s. 67 (2) of the Merchant
Shipping Act, 1894, (Imp.), alleging that its registered owner, one Manuel
Purdy, wilfully made a false declaration touching his qualification to be
registered as owner, by falsely declaring that he was a British subject. The
declaration in question was contained in his declaration of ownership upon his
application for registration of the ship in his name as owner, in March, 1933. His signature to this was duly
proved. There was also put in evidence an authenticated photostatic copy of a
naturalization certificate issued on November 27,
1926, by which “Manuel Purdy,” “ who previous to his naturalization was
a subject of England,” became a citizen of the United States. The signature “Manuel
Purdy” appeared on this certificate, and evidence was given of the practice to
have the signature of the person to whom the certificate relates put upon it.
The Crown relied on a comparison of the handwriting of this signature with that
of the signature to the said declaration of ownership, along with the identity
of names, to prove identity.
Held: Such a
comparison of handwriting was inadmissible. The authenticated copy of the
naturalization certificate was good evidence of the contents of the original
document; and the proper inference was that the signature “Manuel Purdy”
appearing’ on the certificate was that of the person to whom the certificate
was granted. But the rules by which, at common law or by statute, a record may
be proved by exemplification or by the certificate of the person having the
custody of the record, where in the nature of things the original cannot be
produced, do not contemplate the use of such document for the purpose of
establishing the character of the handwriting on the original document. The
court cannot receive for the purpose of comparison of handwriting a copy,
photographic or other, of alleged specimens of handwriting upon proof by
official certificate alone. The court could
[Page 257]
not examine the photostatic copy of the
certificate of naturalization in question for any other purpose than that of
ascertaining the contents of the original. It was not shewn, therefore, that
the Manuel Purdy who in 1926 was
admitted a citizen of the United States was the same person who in 1933 made the said declaration of
ownership and became registered as owner of the ship. Identity of names alone
was not satisfactory evidence upon which to decree a forfeiture (which postulates
an offence) under said s. 67 (2).
The contention that, as the above particular
objection to the comparison of handwriting to shew identity was not taken when
the evidence was offered and received, effect should not be given to it now,
was rejected (Jacker v. International Cable Co., 5 T.L.R. 13). Nothing occurred at the trial (such as did occur, e.g.,
in Bradshaw v. Widdring-ton; see 86 L.T. 726, at
732) which precluded insistence
on the objection now. Also, the document being admissible to establish a necessary
part of the Crown’s case, and having been admitted, it was not so much a
question of the admissibility of a piece of evidence as of the manner in which
evidence admissible and admitted could properly be applied. The denial of
admissibility of such comparison was a proposition of law to which the court
could not refuse to give effect on this appeal; because the Crown by this
appeal was asking the court to declare a forfeiture, and the court must
consider whether there was a proper foundation in the evidence for such a
declaration.
Judgment of Martin, D. J. Adm., [1936] Ex. C.R. 92, in favour of an unregistered transferee of a registered
mortgage of the ship, as against the Crown, affirmed in the result.
APPEAL by the Crown from the judgment of the
Honourable Mr. Justice Martin, District Judge in Admiralty for the British
Columbia Admiralty District.
The Crown claimed forfeiture of the ship Emma
K by reason of an alleged false declaration in a declaration of ownership
made on March 23, 1933. At the trial the present respondent Barrett was given
leave to intervene as being a person interested as the unregistered transferee
of a registered mortgage, and judgment was given in his favour for the
sum standing in court to the credit of the cause as the balance of the proceeds
of sale of the ship, to be applied in reduction of the mortgage. The material
facts of the case are sufficiently stated in the judgment now reported. The
appeal was dismissed with costs.
F. P. Varcoe K.C. for the appellant.
D. K. MacTavish for
the respondent Barrett.
The judgment of Duff C.J. and Rinfret, Davis and
Kerwin JJ. was delivered by
[Page 258]
Duff C.J.—This is an appeal from the judgment of Mr. Justice Martin, the
local Judge in Admiralty for the Admiralty District of British Columbia, who,
in proceedings taken under section. 76 of the Merchant Shipping Act charging
an offence under section 67 (2) of the same Act, adjudged the ship forfeited,
but held that the sum of $2,689.34 standing in court, a balance of the proceeds
of the sale of the ship, should be paid out to John Barrett, intervener, who
claimed as mortgagee. The learned judge held that forfeiture under section 67
(2) does not operate until condemnation and that the interest of the mortgagee
was not affected by it.
In the view I take, it will be unnecessary to
consider the point discussed in the very able judgment of the learned judge in
admiralty.
Prior to the 22nd of March, 1933, the ship Emma
K was registered in the name of Edward Lipsett Limited. By virtue of a bill
of sale dated on that day it was sold to one Manuel Purdy who became the
registered owner on or about that date. On the 18th day of April, 1934, an
action was instituted by certain seamen for wages. In that action the ship was
arrested and, on the 12th of June, 1934, was sold pursuant to a judgment in
admiralty to satisfy the wage claims and costs of the crew. The Judge in
Admiralty directed that the balance of the monies in court, after payment of
these claims, should remain in court to the credit of any actions that were
pending on the date of the order, and these included the present action. At the
trial of the action, Barrett obtained leave to intervene as defendant as the
unregistered transferee of a mortgage in favour of one Allender, dated the 23rd
of March, 1933. The claim of forfeiture is in the endorsement on the writ
stated in the following words:
The plaintiff’s claim against the defendant
ship is for the confiscation thereof to the purposes of His Majesty the King
for that the registered owner thereof, one Manuel Purdy, did wilfully make a
false declaration touching his qualification to be registered as such owner by
falsely declaring that he was a British subject, whereas in truth and in fact
he is and at all material times has been a citizen of the United States of
America, contrary to Section 67, Subsection (2) of the “Merchant Shipping Act,
1894.”
Alternatively the plaintiff says that being
a citizen of a foreign country the said Manuel Purdy did unlawfully cause the
ship Emma K
[Page 259]
to fly the British flag and assume a
British character contrary to Section 69 of the “Merchant Shipping Act, 1894.”
The learned judge found that the alternative
claim was not established; and we agree with his views upon this branch of the
case.
In support of the principal claim, the
declaration of ownership made upon the application of Manuel Purdy for
registration of the ship in his name as owner was produced from the Victoria
registry and the signature of Manuel Purdy was proved by one of the employees in
the registry who said that the document was signed in his presence. The
declaration contains this statement:
I am a natural-born British subject, born
at White Bay, Newfoundland, * * * and have never taken the oath of allegiance
to any foreign sovereign or state, or have otherwise become a citizen or
subject of a foreign state.
The claim for forfeiture is based upon the
allegation that this statement is false and that the declaration was a “wilfully
* * * false declaration” within the meaning of section 67 (2) of the Merchant
Shipping Act which provides:
(2) If any person wilfully makes a false declaration touching the
qualification of himself or of any other person or of any corporation to own a
British ship or any share therein, he shall for each offence be guilty of a
misdemeanor, and that ship or share shall be subject to forfeiture under this
Act, to the extent of the interest therein of the declarant, and also, unless
it is proved that the declaration was made without authority, of any person or
corporation on behalf of whom the declaration is made.
Section 1 of the Merchant Shipping Act enacts
that a natural born British subject who has become a citizen or subject of a
foreign state shall not be qualified to be the owner of a British ship, subject
to a qualification not presently material; and, consequently, the statement
quoted from the declaration was obviously a statement “touching the
qualification of” the declarant to be the owner of a British ship.
Evidence was adduced to show—to this evidence I
shall particularly refer in a moment—that Manuel Purdy had, on the 27th of
November, 1926, been admitted a citizen of the United States of America
pursuant to law. Obviously, if the Manuel Purdy who became the registered owner
of the Emma K, and, for the purpose of becoming registered as owner,
signed and made the declaration of ownership above mentioned, was the Manuel
Purdy who was admitted as an American citizen in 1926, he was not
[Page 260]
qualified to be the owner of a British ship and
the statement quoted from the declaration of ownership was contrary to the
fact.
The claim for forfeiture necessarily rests upon
proof by the Crown that, in making this statement, Manuel Purdy “wilfully made
a false declaration” touching the qualification of himself to own a British
ship. The point to be considered is whether or not the Manuel Purdy who, in
1926, was admitted a citizen of the United States was the same Manuel Purdy who
made the declaration of ownership in 1933, and became registered as owner of
the ship in 1933. Two circumstances are relied upon: first, identity of names,
and second, identity of handwriting.
For the purpose of establishing this identity, a
photostatic copy of the naturalization certificate issued to Manuel Purdy on
the 27th November, 1926, is produced, and that copy is authenticated, first of
all by the seal of the United States Court of Alaska, Division No. 1, attested
by the Clerk of that Court; and, secondly, by the certificate of the Acting
Deputy Commissioner of Labor under the seal of the Department of Labor of the
United States of America, which seal in turn is attested by the certificate of
the Acting Secretary of State for the United States of America and the Chief
Clerk of the Department of State. The certificate of naturalization is as
follows:
UNITED
STATES OF AMERICA
No. 2303964
certificate
op (Coat of Arms) naturalization
Petition,
Volume VIII, Number 992-J.
Description of holder: Age, 33 years;
height, 6 feet ½ inch; color, white; complexion, fair; color of eyes, hazel;
color of hair, dark brown; visible distinguishing marks, none.
(Note:—After September 22, 1922, husband’s
naturalization does not make wife a citizen.)
United States of
America
Territory of Alaska.
ss. Manuel
Purdy
Signature of
Holder.
Be it remembered, that Manuel Purdy, then
residing at number Street, City of Juneau, Territory of Alaska, who previous to
his naturalization was a subject of England, having applied to be admitted a
citizen of the United States of America pursuant to law, and at a regular term
of the U.S. Court of Alaska, Div. No. 1, held’ at Juneau, on the 27th day of
November, in the year of our Lord nineteen hundred and twenty-six, the court
having found that the petitioner intends to reside
[Page 261]
permanently in the United States, and that
he had in all respects complied with the Naturalization Laws of the United
States, and that he was entitled to be so admitted, it was thereupon ordered by
the said court that he be admitted as a citizen of the United States of
America.
In
testimony whereof the seal of said court is hereunto
affixed on the 27th day of November, in the year of our Lord nineteen hundred
and twenty-six, and of our Independence the one hundred and fifty-first.
JOHN H. DUNN,
Clerk
U.S. District Court, Div. No. 1.
(Seal) By
‘Alta C. Purpus,’
Deputy
(Official character of attestor)
The evidence sufficiently proves that one Manuel
Purdy became a citizen of the United States by naturalization on the date
mentioned. Evidence was also given to the effect that the practice is that the
signature of the person to whom the certificate of naturalization relates shall
be put upon the certificate; and the proper inference is that the signature “Manuel
Purdy” appearing on the certificate is the signature of the Manuel Purdy to
whom the certificate was granted. The Crown relies upon a comparison of the
handwriting of this signature with the handwriting of the signature of Manuel
Purdy attached to the declaration of ownership. The question is: Is such a
comparison of handwriting admissible?
Section 8 of the Canada Evidence Act is
in these words:
8. Comparison of a disputed writing with
any writing proved to the satisfaction of the court to be genuine shall be
permitted to be made by witnesses; and such writings and the evidence of
witnesses respecting the same, may be submitted to the court and jury as
evidence of the genuineness or otherwise of the writing in dispute.
There is high authority to the effect that
comparison under the statutory rule involves the production of both the
disputed and the genuine handwriting. In McCullough v. Munn the view of Palles C.B., that a
photographic copy of the alleged genuine handwriting was not admissible for the
purpose of comparison under the rule, was accepted by virtually all the Irish
judges including Fitzgibbon L.J. and Holmes L.J. Whether or not that principle
is applicable in this case it is not necessary to decide.
The certificate of naturalization was pertinent
evidence to establish the offence charged under section 67 (2) and, probably,
if the original document had been before the court, it would have been
competent to the court, without the aid of the statutory rule, to enter upon a
comparison
[Page 262]
of the handwriting in the two signatures for the
purpose of dealing with the question of identity. It is unnecessary to decide
the question whether, if a photographic copy, proved in the ordinary way by the
evidence of the photographer who had made the photograph and could inform the
court upon the preliminary question as to the accuracy of his methods and
results, had been before the court, it would have been competent to the court
to inspect the copy of the signature so proved for the purpose of comparison
with the signature attached to the declaration of ownership. What we have
before us is something entirely different. It is a certified copy, or, if you
will, an exemplification of proceedings in the United States Court in Alaska.
This document is perfectly good evidence of the contents of the original
document; but the rules by which at common law or by statute a record may be
proved by exemplification or by the certificate of the person having the
custody of the record, where in the nature of things the original cannot be
produced, do not contemplate the use of such document for the purpose of establishing
the character of the handwriting on the original document. I know of no
principle and of no authority which could justify a court in receiving for the
purpose of comparison of handwriting a copy, photographic or other, of alleged
specimens of handwriting upon proof by official certificate alone. In my
opinion, it is not competent for the court to examine the photostatic copy of
the certificate of naturalization now before us for any other purpose than that
of ascertaining the contents of the original certificate.
As evidence of identity there remains the
identity of names which, in my opinion, is not satisfactory evidence upon which
to decree a forfeiture (which postulates an offence) under section 67 (2).
The Crown argues that, as this particular objection
to the evidence was not presented when the evidence was offered and received,
effect cannot be given to it now. This argument is answered by J acker v.
International Cable Company, a
decision which has been applied in this court more than once. There may, of
course, be cases in which the failure to take an objection precludes the party
from insisting on that objection on appeal, for example;
[Page 263]
if, by reason of the fact that evidence was not
objected to, the party refrains from offering other evidence which he has at
his command which would be unobjectionable, the right to object to the evidence
received may be lost. An instance of that occurred in Bradshaw v. Widdrington where, as stated in the judgment of the
Master of the Rolls,
* * * it seems to me that Mr. Terrell is
really not in a position to contest before us, as a matter of strict law,
whether those accounts are admissible or not, because at the trial Mr. Astbury
was there with the evidence which would have told us the precise conditions
under which those accounts came into existence. Owing to what passed at the
time between him and Mr. Terrell in the presence of the judge in the court
below, that evidence was not called. * * * If those objections had been
pressed, Mr. Astbury had witnesses who were prepared to deal with them.
Nothing occurred at the trial in the present
case which precludes the respondent from insisting on the objection now.
It should be observed, however, that the
document, the photostatic copy of the certificate of naturalization, was
plainly admissible for the purpose of establishing a necessary part of the case
of the Crown, viz., that Manuel Purdy had become a citizen of the United States of America. The document
being admitted, it is not so much a question of the admissibility of a piece of
evidence as of the manner in which evidence admitted and admissible can
properly be applied. In the view above expressed, the law does not permit the
court to make use of certain marks on that document, that is to say, the words “Manuel
Purdy,” for the purpose of ascertaining whether or not the Manuel Purdy to whom
the certificate was issued was the same person as the Manuel Purdy who signed
the declaration of ownership. That is a proposition of law to which the court
cannot refuse to give effect on this appeal; because the Crown by this appeal
is asking the court to declare that the monies in court have been forfeited to
the Crown and the court must consider whether there is a proper foundation for
such a declaration in the evidence before it.
The appeal must, therefore, be dismissed with
costs; but it must not be assumed, by reason of the fact that we have dismissed
the appeal on a ground which is not the same as that upon which the judgment of
the Judge in
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Admiralty proceeded, that any disagreement is
implied with the reasons upon which the learned judge held that the claim of
Barrett to the monies in court has been established.
Appeal dismissed with costs.
Solicitor for the appellant: W. Stuart Edwards.
Solicitors for the respondents: Lucas & Lucas.
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