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Colonial Cases

Clarke v. Mullick, 1840


Clarke v. Mullick

Judicial Committee of the Privy Council
19 December 1840
Source: The Times, 21 December, 1840


  This was an appeal from a judgment given by the Supreme Court of Calcutta in an action brought by the plaintiff, as assignee of a bankrupt, against whom the [???] had issued in England. The ground of the action was a promissory note, of which the defendant was acceptor. The defendant pleaded the general issue.  In support of the plaintiff's case, the proceedings in the Court of Bankruptcy in this country were offered in evidence; but no proof was given of the authority  of the seal, without which  proof the Court refused to receive the proceedings, and a verdict was given  for the defendant, upon the ground that there was no evidence of the plaintiff's title to sue without proof of the seal of the Bankruptcy Court, as the statutes which passed in this country upon the subject, and under which the proceedings  of the Bankruptcy Court proved themselves, did not extend to India.
  It was further decided that even if these statutes, the 6th Geo. IV., c. 16, and the 2d and 7th Wm. IV., c. 114, extended to that country, they could not affect any case of bankruptcy which had occurred before the 1st of September, 1823. From this judgment the present appeal was brought.
  The case was argued a few days ago, upon which occasion Sir W. Follett and Mr. E. F. Moore appeared for the appellants, and Mr. Serjeant Sparkie and Mr. R. V. Williams for the respondents.
  The counsel for the appellant contended against three grounds upon which the judgment proceeded below, and the two other objections here for the first time. The objections were that the form of the defendant's plea admitted the plaintiff's title, and that a notice to the plaintiff to prove the bankruptcy was irregular and void, and that the plaintiffs were not therefore obliged to prove their title at all, as it was admitted upon the record.
  Lord Brougham now delivered the judgment of the Court, which was to the effect that the statute in question did not extend to India; that the seal of the Court of Bankruptcy ought to have been authenticated by evidence; that the form of the plea did not admit the title of the plaintiffs, and that the objections to the irregularity of the notice to dispute ought to have been taken in the court below.
  The judgment of the Court below was therefore affirmed with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School