Oldfield, J.

1. Plaintiff, here respondent, in his plaint described his claim as for money due with reference to a memo. This memo, Exhibit A, is, there is no doubt, so worded as to come within the definition of a promissory note and we have not been shown how in the circumstances of the case it can be otherwise regarded. It however bears no stamp; but no objection being taken and issue formally joined as to its admissibility in evidence, the District Munsif treated it as an agreement, collected duty and penalty accordingly and exhibited it. There is no doubt that he erred in doing so. But we have to decide whether Section 36 Indian Stamp Act (II of 1899) debarred the lower appellate Court and debars us from correcting his error, that is, whether Section 36 is applicable, even when the instrument admitted in evidence is one which like Exhibit A, is not only not duly stamped, but could not in any circumstances be rendered "admissible by payment of duty under Section 35. The answer to this question cannot be affected in the present case by the District Munsiff s mistaken action in collecting a duty and penalty which were not applicable, hut must be based on general considerati