King v. The Ship Emma K and Barrett

C.J.-This is an appeal from the judgment of Mr. Justice Martin (1), 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 learned judge found that the alternative claim was not established; and we agree with his views upon this " K 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:

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:

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 qualified to be the owner of a British ship and the state- THE KING ment quoted from the declaration of ownership was con- TIE S.

trary to the fact.

K"

The claim for forfeiture necessarily rests upon proof by .

the Crown that, in making this statement, Manuel Purdy Duff ca. " 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

(Coat of

Petition, Volume VIII, Number 9924.

Description of holder: Age, 33 years; height, 6 feet I 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 twentysix, the court having found that the petitioner intends to reside per- 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: 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 (1) 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 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 Jacker v. International Cable Company (1), 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, 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 TV right to object to the evidence received may be lost. An instance of that occurred in Bradshaw v. Widdrington (1)

where, as stated in the judgment of the Master of the Rolls,

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,