Skip to content


The Secretary of State for India in Council Vs. Judah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal445
AppellantThe Secretary of State for India in Council
RespondentJudah
Cases ReferredPeninsular and Oriental Steam Navigation Co. v. The Secretary of State
Excerpt:
insolvent act (11 & 12 vict. clause 21), section 62 - crown-debts--judgment-debt in name of secretary of state for india in council. - .....is, whether the debt owing by the defendant, and which he desires to insert in his schedule, is a crown-debt within the meaning of section 62 of the insolvent act.2. here the learned judge set out the facts of the case.3. the only question therefore is, whether this is or is not a crown-debt. in my opinion it is clearly a crown-debt. it is admitted that the opium which was sold belonged to the crown; and it is also admitted that this very debt, when recovered, would belong to the crown; but it is contended that, in the meantime, the promissory notes sued upon which were given by the defendant to the secretary of state were so given to him, not on behalf of the crown, but as of a body corporate of a special character; and although he may be a trustee for the government, he is not an.....
Judgment:

Richard Garth, C.J.

1. I think this is a very plain case; and I entirely agree with the Court below that the rule should be discharged.

The question is, whether the debt owing by the defendant, and which he desires to insert in his schedule, is a Crown-debt within the meaning of Section 62 of the Insolvent Act.

2. Here the learned Judge set out the facts of the case.

3. The only question therefore is, whether this is or is not a Crown-debt. In my opinion it is clearly a Crown-debt. It is admitted that the opium which was sold belonged to the Crown; and it is also admitted that this very debt, when recovered, would belong to the Crown; but it is contended that, in the meantime, the promissory notes sued upon which were given by the defendant to the Secretary of State were so given to him, not on behalf of the Crown, but as of a body corporate of a special character; and although he may be a trustee for the Government, he is not an officer of the Crown in such sort, as that the debt which is due to him from the defendant can properly be considered a Crown-debt.

4. I confess I am unable to understand this nice distinction. It seems to me that, since the Statute 21 & 22 Vic, c. 106, the Secretary of State in Council represents the Government here to all intents and purposes. He is the officer of the Crown authorized to sue and be sued in respect of all Crown-debts and contracts. In that character these promissory notes were given to him by the defendant, and I consider that the debt is as much a Crown-debt before it is recovered from the defendant as afterwards.

5. This seems to me to be the true and short answer to the argument which has been addressed to us.

6. There is nothing in this view which conflicts in any way with the principle of the case of the Peninsular and Oriental Steam Navigation Co. v. The Secretary of State Bourke Pt. VII. 167 on which the appellant relies. That case only laid down the rule that, where the Government of this country carries on a trade, and in the course of that trade employs a number of persons, they are as much liable for any negligence of which their servants may be guilty as any private person, and may be sued for such negligence in the name of the Secretary of State.

7. I cannot help thinking that in this case a good deal of time has been unnecessarily occupied in discussing a large amount of old English law with regard to extent and Crown-debts, which, I am happy to say, does not concern us here. Our procedure, as well as our law, upon that subject is of a much more simple character.

8. I think that the appeal should be dismissed with costs.

Wilson, J.

9. I am of the same opinion.

10. The question which we have to answer is, whether the debt in question is a 'debt due to our Sovereign Lady the Queen,' within the meaning of Section 62 of the Insolvent Act.

11. Under the Act for the better government of India 21 & 22 Vict. C. 106, which is amended and its effect somewhat defined by 22 & 23 Vict. c. 41, there is no doubt that the territories formerly governed by the East India Company, and all those subsequently acquired, are vested in the Crown; that all moveable property of the State belongs to the Crown; and that the revenues of India of all kinds, regular or casual, are vested in the Crown, although the control and management of them, in the manner prescribed by the Statutes, are entrusted to the Secretary of State.

12. Now the debt in the present case is a debt in respect of the price of Crown property sold, and the amount when received would be a part of the revenues of India. It appears to me, therefore, that the debt is in substance a debt due to the Crown.

13. But it is said that it is not a debt due to the Queen within the meaning of the section in question for two reasons. I shall deal with these in the reverse order to that in which they were argued.

14. First, it is said that this is not a Crown-debt, because, if incurred in England, it would not be the subject of extent.

15. I think it unnecessary to enquire into the English law relating to extents. It appears to me that the principle laid down by the High Court in Bombay, in the case of the Secretary of State for India v. The Bombay Landing and Shipping Company 5 Bom. H.C.O.C. 23 see p. 47 is the true principle applicable to such cases as toe present; and it is abundantly supported by the authorities there referred to. That principle is that, in these cases, the question is, sot in whose name the debt stands, but whether the debt, when recovered, falls into the coffers of the State.

16. Applying that principle to this case, I think it clear that this is a debt due to the Crown.

17. Secondly, it was argued that whether, apart from the specific enactment this would be a Crown-debt or not, the effect of Section 65 of the Act for the better government of India is to place it on a different footing. It was contended that the effect of that section, read in connection with some earlier sections, is that in matters of this nature, neither the Secretary of State nor any higher authority represented by the Secretary of State shall, in any respect, stand in a better position than the East India Company would have stood in if the same events had occurred during the time of its Government.

18. I do not think there is any such intention to be gathered from the Act. The section first empowers the Secretary of State to sue and be sued; so far it deals only with the manner in which suits are to be brought, and has nothing to do with substantive rights. The latter part of the section says nothing as to what rights may be acquired either by the Secretary of State or by the Crown through the Secretary of State, nor as to the nature or character of rights so acquired. It leaves that to be governed by the ordinary principles of law. But with regard to liabilities which may be enforced against the Secretary of State there are express words: and the reason of that, as explained in the judgment in the case of the Peninsular and Oriental Steam Navigation Co. v. The Secretary of State in Council Bourke Pt. VII 167 would seem to be that the East India Company, [453] not being a sovereign body, might have been made liable by suit in cases in which such a remedy would not, without special enactment, be available either against the Crown or against any servant of the Crown as such; and that it was intended to give the same remedies, in some cases at least, against the revenues of India by suit against the Secretary of State which were formerly admissible against the East India Company. But whether this be the true view or not, it has nothing to do with the nature of a Crown-debt; and no bearing, therefore, upon the construction of Section 62 of the Insolvent Act.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //