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Colonial Cases

Nunes v. Carter, 1866


Nunes v. Carter

Judicial Committee of the Privy Council
Source: The Times, 14 November, 1866

(Present - Lord Westbury, Sir J. Colville, Sir E. V. Williams, and Sir L. Peel.)
  This was an appeal from the Supreme Court of Jamaica, arising under the Insolvent Debtors' Act. The matter had been some years in litigation, and the costs would probably amount to as much, if not more, than the sum in dispute.
  Sir Roundell Palmer, and Mr. Garth, Q.C., were for the appellants, Messrs. Nunes, merchants at Jamaica; Mr. Coleridge, Q.C., and Mr. Mackeson appeared for the respondent, the official assignee of the Insolvent Debtors' Court in the island.
  There had been dealings between the appellants and one Vaz, who became insolvent, and the contention was as to securities given and payments made within six months of the insolvency. In 1863 the action by Mr. Carter, the official assignee, under the 67th section of the 11th of Victoria, was tried, and a verdict given in his favour. The present appellants moved for a new trial, on several grounds, which new trial was refused, and the appeal to the Judicial Committee was made to reverse the judgment in the action, and to set aside the rule refusing a new trial. The verdict was for 1,226 l. but the sum in dispute was understood to be 941 l.
  The question between the parties was whether the payments were within the purview of the Insolvent Debtors' Act in force in the island, and fraud was alleged in the transactions. Two of the parties had died since the proceedings were commenced - the insolvent Vaz and one of the house of Messrs. Nunes.
  The case was commenced at the sitting of the committee, Sir R. Palmer and Mr. Garth were heard, followed by Mr. Coleridge, Q.C., and Mr. Mackeson.
  At the end of the day their Lordships gave permission to Mr. Garth to reply tomorrow (this day).
[As above] Nov. 14.
  This case, mentioned in The Times of yesterday, was resumed at the sitting of the Committee and concluded. It raised a question on appeal in a matter of insolvency which had occurred in Jamaica.
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One Vaz had become insolvent and had made payments and given securities to Messrs., Nunes within six months.  Mr. Carter, as official assignee, had brought an action to recover the money and securities, and a verdict had passed in his favour. The defendants in the suit obtained a rule for a new trial, which was refused, and they now appealed to Her Majesty in Council. The litigation had continued about three years, and the sum in dispute was inconsiderable compared with the expenses incurred.
  Mr. Garth, Q.C., was heard today in reply.
  Lord Westbury, after a brief consultation with the other members of the Committee, proceeded to give judgment on the two points raised by the appeal - the construction of the Insolvent Debtors' Act (11th Victoria) in force in Jamaica, and the question of fact as to the securities given to the appellants. His Lordship gave a history of bankruptcy and insolvency from a very early period as to payments made which were voidable as against creditors. By one statute five years was the period in which property could be recovered, which he considered a very harsh and unreasonable law. Sir Samuel Romilly reduced the period to two years. Then it was reduced to 12 months, and now the limit was in England three months. A case had been cited to their Lordships as bearing on the present, but it was under an Act which was not the same as the one in force in Jamaica. Their Lordships had to construe the 67th section of the 11th of Victoria as to the payments made and securities given within six months of the judicial declaration of insolvency.
  It had been alleged that there had been fraud in the transactions, but, in the words of the section, all payments were voidable under circumstances within six months, and their Lordships were of opinion that the payments in this case came within that enactment.  There was another point as to the securities given, and which it was contended had been given under different circumstances, but their Lordships, although the point had been very ably and fairly argued by Mr. Garth, could come to no other conclusion than the one arrived at by the jury. Both on the question of law as well as the question of fact they were of opinion that there were no grounds for the appeal, and their Lordships would therefore humbly advise Her Majesty that the appeal be dismissed, and dismissed with costs.

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