1881.

evidence, as the statute now makes unstamped instruments THE QUEEN evidence in criminal cases. For these reasons I think the conviction should be affirmed.

V.

DEWITT.

With regard to Hawkswood's Case and Morton's Case, referred to in argument, I may add that the doctrine of these cases was never extended beyond cases of forgery. They were made to rest on the character of the offence, which consists in simulating a document, and which presupposes its falsity. Another reason might be given, viz.: that the Stamp Acts are made for true and not for false instruments. But apart from cases of forgery and cases where the document was merely collateral to the prosecution, it was settled law prior to the Act authorizing the admission of the evidence of unstamped documents in criminal cases that in this respect the Stamp Acts were as applicable to criminal as to civil proceedings. This was declared to be the law in Reg. v. Gompertz.1

Mr. Justice Duff authorizes me to state that he concurs in this judgment.

WETMORE, J. The prisoner was indicted for stealing a promissory note, and convicted thereof. I agree with my brother Weldon, that the conviction should not be sustained, by reason of the defect in the stamping the instrument alleged to have been stolen. Section 12 of 42 Vic., cap. 17, after declaring the penalty for not affixing proper stamps, duly initialed, at the proper time, proceeds:

"And save only in the case of payment of double duty as in the next section provided, such instrument shall be invalid and of no effect in law or in equity, and the acceptance or payment or protest thereof shall be of no effect."

The defectively stamped note was not to my mind such an instrument as was capable of being the subject of larceny as a promissory note. It was legally valueless as a promissory note under the Stamp Act. Section 13 enables an innocent holder of an unstamped note to make it valid by the doing of certain specified requirements. This, I apprehend, only applies to civil rights, and cannot affect any criminal proceeding, otherwise the conviction for larceny might depend upon whether the note was held by a party innocent, or not so, of the want of or de

19 Q. B. 824.

1881.

fect in its stamping. The instrument being by law utterly valueless, I am at a loss to see how it could be the subject of THE QUEEN larceny. By cap. 21 of 32 & 33 Vic., sec. 2,

"Every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature and shall be subject to the same incidents in all respects as grand larceny was, before the distinction between grand and petit larceny was abolished.”

The words "whatever be the value" would seem to imply the necessity of some value. The value, after this statute, may not be material-that is the extent of value-still where the law expressly declares the article to be of no value, how can an indictment for larceny be sustained? If no larceny was committed by the prisoner at the time of the taking, by the appropriation of the article, the felony cannot be perfected by something, such as affixing stamp, done by some one else after the taking is complete, any more than if a person appropriate an animal feræ naturæ, not the subject of larceny, could be liable for larceny by the subsequent taming of the animal.

The prisoner is indicted and convicted for stealing a promissory note. Was what the prisoner appropriated a promissory note? A promissory note is a written promise for the payment of moneys requiring certain requisites. Did this note-defectively stamped-contain a promise? Must not the document contain a promise—a binding promise-and what possible binding promise is there where the law says the document is invalid, and of no effect in law or in equity: in other words, utterly valueless in its then state.

By the first section of cap. 21 of 32 & 33 Vic., an Act respecting larceny and similar offences, a valuable security is defined as including any debenture, deed, bond, bill, note, warrant, or other security whatsoever for money, or for payment of money. By section 15, as to larceny of written instruments, it is enacted that whoever steals, or for any fraudulent purpose destroys, cancels, obliterates or cancels, the whole or any part of any valuable security, is guilty of a felony. Section 1 speaks of, and only extends to, a document that is security for money, or payment of money. Now what security for money or for payment of money is a written paper unstamped or improperly stamped, which the law declares to be invalid, and of no effect

บ.

DEWITT.

1881.

V.

DEWITT.

in law or in equity, and the payment of which is prohibited THE QUEEN under a penalty? The term "writing" has its legal definition by section 1. It includes any mode in which, and any material on which, words or figures at length or abridged, are written, printed, or otherwise expressed, or any map or plan is inscribed. To indict and convict a prisoner for stealing a writing is one thing; for stealing a promissory note, quite another. The prisoner might well have been convicted for stealing the paper, and the defective stamp, or either of them, or of stealing a writing, but the indictment specifies what the party is charged with stealing. The indictment charges stealing a promissory note, and the prisoner is convicted as charged, when the document he appropriated was of no value. It contained no promise. Its payment is prohibited under a penalty; and, besides the payment would have been of no effect by the Stamp Aet. And I think in law it had no existence as a promissory note or valuable security in the state it was when appropriated by the prisoner.

WELDON, J. The defendant was convicted and found guilty at the Carleton Assizes, holden in November last, before Mr. Justice Duff. A question of law was reserved,-whether he was rightly convicted of the offence charged.

The defendant was indicted under 32 & 33 Vic., cap 21, sec. 15, for stealing a promissory note, dated 30th March, 1880, payable to Bradford Gardiner, eight months after date, for $45. The note, when produced, had the proper stamps. The prisoner had made his mark to the note, but there was no obliteration of the stamp. A person of the name of Quin said he had written the note, and saw the defendant's mark made thereto. There were no stamps on the note when it was made; he put the stamp thereon afterwards. It being objected by the prisoner's counsel that the note was void for want of being stamped at the proper time, the prosecuting officer was allowed to add double stamps at the trial to make the note valid, under the 13th section of chap. 17, 42 Vic., upon which the prisoner was found guilty. The section reads:

Any holder of such instrument, including banks and brokers, may pay double duty by affixing to such instrument a stamp or stamps to the amount thereof, or to the amount of double the sum by which the

1881.

v.

DEWITT.

stamps affixed fall short of the proper duty, and by writing his initials on such stamp or stamps, and the date on which they were affixed; THE QUEEN and where in any suit or proceeding in Law or Equity, the validity of any such instrument is questioned, by reason of the proper duty thereon not having been paid at all, or not paid by the proper party, or at the proper time, or of any formality as to the date or erasure of the stamps affixed, having been omitted, or a wrong date placed thereon, and it appears that the holder thereof, when he became such holder, had no knowledge of such defects, such instrument shall be held to be legal and valid, if it shall appear that the holder thereof paid double duty as in this section mentioned, so soon as he acquired such knowledge; even although such knowledge shall have been acquired only during such suit or proceeding."

This section, it appears to me, was never intended to apply to a criminal proceeding where a party is charged with stealing a promissory note in form, but not properly stamped; and therefore the double stamping by the Crown, or prosecuting officer at the trial, was not authorized by or made valid by this section. Neither the Crown nor the prosecuting officer could, under this section, be considered the holder thereof, nor could any act by them make the note valid at the time of the stealing thereof, it being of no more value when stolen than the paper on which it was written. It could not be recovered on at law in the state it was then in, nor unless it was double stamped.

How can it be contended that the double stamping at the trial, long subsequent to the taking, which constitutes the alleged larceny, and wholly unconnected therewith, can make it larceny to take that which was not of any value, nor a valuable security, within the meaning of the Statute. It is clear that under the Stamp Act the note was of no value either at law or in equity. This paper, though in form of a promissory note, did not in any way change or alter the relative position of the parties in respect thereto, or their relative rights or obligations.

The case of James Scott v. The Queen,' is conclusive to my mind to shew this conviction cannot be sustained. All the cases bearing on the question are referred to in that judgment. The double stamping at the trial, doubtless had its effect upon the mind of the jury, and being improperly allowed, I am of opinion this conviction should be quashed on this ground, if there were no other. The adding double stamps in civil actions to make a note valid, is only allowed under statutory authority.

12 Sup. Court of Can. Rep. 349.

1881.

No authority can be found in any criminal code to authorize THE QUEEN the Crown, through the prosecuting officer, as an innocent holder, to place double stamps on a promissory note.

V.

DEWITT.

I am therefore of opinion this conviction ought not to stand. ALLEN, C. J. I think the conviction in this case should be sustained.

The Statute under which the prisoner was convicted is the 32 & 33 Vict., c. 21, and the sections bearing on the question, are the first and fifteenth.

The fifteenth section declares that whosoever steals any valuable security, other than a document of title to lands, is guilty of felony, and punishable in the same manner as if he had stolen any chattel of like value with the money due on the security so stolen, or secured thereby, and remaining unsatisfied.

The first section declares that the term "valuable security' shall include (inter alia) " any debenture, deed, bond, bill, note, order, or other security whatsoever, for money or for payment of money."

Then, was the instrument in question here, at the time it was taken by the prisoner, a note, or security for the payment of money? I entirely agree with my brothers Weldon and Wetmore that unless it was so, the conviction is bad; and that no act of the prosecutor, subsequent to the taking can affect the prisoner's liability.

2

I think the cases of Bradley v. Bardsley1 and Reg. v. Watts, which have been fully considered by Mr. Justice King are decisive on the point whether it was a promissory note. They decide that a document of this kind, though unstamped, is nevertheless a promissory note, and capable of being made available as evidence of the rights of the parties; though whilst unstamped, it cannot be given in evidence. It becomes a note the moment it is signed and delivered to the payee, as security for the payment of a sum of money due to him by the maker. It was unnecessary, by the 19th section of the Stamp Act (42 Vic., c. 17), to affix double stamps upon the note before putting it in evidence.

The case of Scott v. Reg.3 is clearly distinguishable from this case. There, the document at the time the prisoner stole it,

114 M. & W. 873.

218 Jur. 192.

32Sup. Court, R. 349.