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![handle is hein.slavery/ssactsengr0219 and id is 1 raw text is: MACRAE V. GOODMAN [1846]
ON APPEAL FROM THE COLONY OF BRITISH GUIANA.
ALEXANDER MACRAE, Attorney for JOHN CAMPBELL, Senior, and Co.,-Appel-
lant; STEPHEN HENRY GOODMAN,-Respondent * [May 13 ana 14,
1846].
A., resident in Amsterdam, being the owner in, possession, of a plantation il
British Guiana, by an instrument executed on her behalf, by her attorney in
London, in the year 1817, sold the plantation, cmn annexis, to B. for 100,000
guilders Holland currency, and £30,000 sterling ; taking, as part of the
consideration-money, a first mortgage on the plantation for the 100,000
guilders. By the terms of this mortgage, it was stipulated that the 100,000
guilders were not to be paid during the lifetime of A. ; but upon her death,
to her lawful descendants (if she had any), and if not, to the nephews and
nieces of J. B.; and it was specially provided that if at any time the interest,
at the rate of 5 per cent., should not be punctually paid every year, at
Amsterdam, and that if, by such default, A. should be obliged to appoint an
attorney to demand the same in the colony, the interest in that case should be
at the rate of 6 per cent., and a further charge of 10 per cent for commission.
A. intermarried with E., and the interest on the mortgage not having been
paid as stipulated, an attorney was appointed at British Guiana, to recover
the arrears. In 1828 A. died without issue or lawful descendants, leaving E.,
her husband, surviving ; at which time the interest on the mortgage was still
in arrear. In the year 1836, C. and Co. purchased the first mortgage, and
all the interest therein, which the parties claiming title under the limitation
in the mortgage-deed to the nephews and nieces of J. B. had. The con-
sideration-money paid by C. and Co. was considerably less than the amount of
the first mortgage and interest thereon. Upon the passing of the Act for the
abolition of slavery, C. and Co. received from the Compensation Co.n-
missioners, in respect of this mortgage, a sum more than sufficient to repay
them what they had paid for the mortgage, but much less than was due upon
the mortgage for principal and interest. The plantation was sold in 1838,
at the suit of B., and all creditors having claims were summoned to render
their claims, and upon C. and Co. claiming priority under the first mortgage,
the Supreme Court of Demerara and Essequibo, held, that the second mortgagee
was preferent over the first, as under the Anastasian law, which they declared
prevailed in British Guiana, an assignee for a valuable consideration of a
debt or chose in action, secured by debt, could not recover more than the
amount of the consideration-money, actually paid to the assignor, with legal
interest from the time of payment, and that the sum received by C. and Co.
from the Compensation Commissioners was more than sufficient to pay off,
and must be held to extinguish the whole debt upon the first mortgage.
Upon Appeal, held by the Judicial Committee of the Privy Council, reversing the
decree,-
I. That in the absence of any fraud by C. and Co. in the purchase of the first
mortgage, and of any authority to show that the lex anastasiana prevailed in
British Guiana, or could be applied to a ease so circumstanced, the amount
of the consideration-money given by C. and Co. was not to enter into question
between them and the second mortgagee [5 Moo. P.C. 336].
II. That the terms, in the mortgage-deed, Holland currency, coupled with the
fact of Amsterdam being the place mentioned for payment, meant Dutch
currency, and not colonial.currency [5 Moo. P.C. 337].
III. That the clause for varying the interest from £5 to £6 was not confined in its
operation to the lifetime of A. ; but that circumstances might have rendered
it inequitable to increase the rate of interest after A.'s death, or during some
portion of the time, after that event [5 Moo. P.C. 337].
In this case, the Appeal was brought from a sentence of the Supreme Court of
* Present: Lord Langdale, the Vice-Chancellor Knight Bruce, the Right Hon.
Dr. Lushington, and the Right Hon. T. Pemberton Leigh.
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