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L/vPi
Reports op all cases
DECIDRn
IN THE SUPREME
OK THE
CAPE OF GOOD HOPE,
DURING THE YEAR 1897
(WITH TABLE OF CASES AND DIGEST).
, RfcPOBTKD BY
J. D. SHEIL,
OK THK INNKK TBMPLE, BARRIHTBR-AT-LAW, ADVOOATB OF THB BUPRBMB
COURT, AKD ASSISTANT LAW ADVISER TO THB CROWN,
VOL. VII.
CAPE TOWN :
PKINTBD AMI> rUISLlSHBD AT THE *«JXikJ«4:iMBS" OFFICE, ST. OBORGBS STRBBT.
1898
JUDGES OF THE SUPREME COURT DURING THE YEAR
1897.
Thb Right Honourable Sie J. II. de VILLIERS, P.C.. K.C.M.G. (Chief Justice).
Hon. Mr. Justice BUCHANAN (Acting Chief Justice front 1st June to 31st Oct.).
Hon, Me. Justice MAASDORP.
Hon. Me. Justice SOLO.MON (Sat during the August Term).
A ttomey- General,
Hon. Sib THOMAS UPINGTON, Q.C., K.C.M.G.
• r . -
k
♦TABLE OF CASES.
PAOB
ii^Uex parte 116
Alnh'tms T. Abrahams 122
AdMmLgn^, ex parte 310
Adams t. Gtpe Colonisation Co. ... 121
Aitehison T. Aitchlson 20
AlbertjD, ex parte 122
AUbrd, Wills & Co. T. Bosman 121
Albg T. BbbuSy o/uu Mabioi 343
Aliwi] North Board of Executors, r« 118, 200
AUeo T. Tompkins ... 503
ADeDxeniky y. Gaeriner's Executors 186, 230
T. Pidc ••• ••• ••• l85
Anjott T. Amyott and Garrett ... 375
Arnold's Estate, r« 260
AMnnhutk, ex parte 377
Ashptd, ex parte 95
Attwell,re 3799 389,422
Attwdl A Co. T. Pnrcell, Yallop &
Ererett 408
Asstio T. Hausmann ».. 229
AveQant ^minors), re 329
BIT. Ragiem SSOO
Bitrtfflao T. Colonial Government ... 310
Bwhmeseb, re ... ... 42
Bukj?. Anther... 398
Bsilqr T. Bailey 96
BskeTj ex parte 185, 230
), (minor), rs ... 328
p , & Co. y. De Yilliers 62
Baker's EeUte, re ^ 319
Btk,exparte ... 130
Bam T. Bobotse ... 323
„ y. Robertson ... ... ..•• 95
« Pros. y. Perkins ... 148
Bank of Afiica y. Bennett and Others 82
BamJiall y. Barraball ^. ... 168
Barker y. Barker.. ... 114
Bartbplameic'fl EstiUe, re 394
„ . y.Sublefi»rd ... 14, 117
9moo, ex ptfrte ... 122
„ . y. Vnn Zyl, ,., ... •.. 38
Bnipaonft Po. y.Qillie**. •«• .;. 122
hoABT, ex parte v% < ... 122
&7ii9*s Totpr y. Tliompson Aod^nQther 380
PAGE
Beedle & Co. (in liquidation), re 19, 62
Begley y. Denton & Thomas 368
Behr y. Harmao 19
„ and Others v. Van der Westhuizen^s
Estate and Others 389
Beiles y. Beiles 315, 477
Bein, ex parte 389
Bekker y. Van Heerden 416
Bell v. Bell 149, 186, 231
Benuing's Estate, re 433
Berg*s Estate, re 503
Bernstein y. Bernstein 210
„ y. Bernstein's Trustee ... 169
„ y. Calling 121
BeeteTj ex parte 185
Bettelheim y. Williams .. 186
Beukman, fxj^arfo 230
Beyer y. Beyer 128
,, y> w lese *.. ... ... .. *fo
Black y. Lawrence 440
Blackburn y. Mitchell ... 328, 362, 379
Blaney exparte 121
Bloem y. Zietsman 402
Board of Executors y. Heyns 377
„ „ y. Oosthuizen ... 277
Bodkin y. Uoskins 120
Boeberg y. Boeberg 374
Booy , ex parte Annetje 475
Bosipan & Co. v. Armstrong 309
fiosman's Trustees y. Bosman 323
Botha*s Executors y. Du Plooy .... 429
Bougard y. Jones's Executors and the
Al.a6ter ... ... ••• .•• Zo*/
Brodie y. Cape Colonisation Co. ... 272
Brooks v. Brooks ... 20, 117, 392
Brummer & Co. v. Vogel 474
Bruanette, ex parte '. 118
Buchanan (minor), re ... 288
Buissinn^ y. Victor 383
'BvXXeTiy ex parte ... .... ... ... 343
Bcirdack v. Burdack .... 12
^ l*am muck indebted toHr. HowsL JOKBB of
the Supreme -Court Bar, who has reported the
kiajocUy of the oaeen since the beginning of the
Vijpgii^t Term.7^.D.8.
11
TABLE OP GASES.
•••
•••
Burton y, Knight
Butler, ex parte
Byl, ex parte ... ••» •••
„ V. S. P. A G. P. Tnunway Co.
PAOB
... 167
... 272
... 210
... 230
Cairncrois v. Korkie ... 393
ff V. Oudtshoorn Municipality 286
Cameron, exparte 83
„ V. Rooney ... ••• ••• 209
Campion y. Campion ... 395
Cane v. Anret 384
Cape Colonisation Co., re 128, 274, 320, 380
Cape Commercial Bank (in liquida-
tion), re 379, 386, 603
Cape Divisional Council v. Langford ... 166
Cape Town Town Council y. Falconer 384
leaner, re ... ... •.• ..« ...llo
„ T. Aliwal North Municipality ••• 491
Castagnino v. Castagnino 294
Celliers St Co. v. Bazier 121
ChEpaoiXif ex parte 230
Chivell and Others y, Carlyon and
Others 67, 83
daremont Sanatorium t. Claremont
Municipality 281
Cleghom and Others y. Smith ... 83, 117
Cloete, ex jMuie 116
Ooettee, ex parte 377
Cohen v. Le Du 121
Collins V. Clarke 186, 209
Colonial GkiTernment y. Belle 476
V. Cook Brothers 2
T. Elliott ... 502
y. Oertenbach's
Executor ... ... ... ... 60
Colonial Government v. Noltzykop Gold
Mining Company 2
Colonial Government v. Btpbael ... 389
„ I, V. RoBsell ... 422
„ „ V. Van der Walt 603
9, 9, V. Van Rensburg 1^9
„ ,1 V. Visagie & others 169
Colonial Orphan Chamber v. Hunter ... 1
Combrinck & Co. v. " Gordon Castle ** ... 129
„ „ V. Pescod 122
Commaille (minor), re 386
Consistory D.R. Church, Cape Town,
Petition of ••• ••• ... «•• 4
Cook V. Walker & Co 384
»»
J>
9t
II
»
II
PAOI
Co-operative Baking Co., re ...66, 122, 14S
Copeland, ex /9arfe 970
Comwell, re ••• 117
Cotterell v. Snyman 277
Courtis's Executors, ex ^Mirte ••• ••• 286
v/OX, f*e ••• ... ... ... •.» 9o
Cressy v. Van der Merwe 283
Crossley and Wifis, ex jMirfe 962
Cruywagen v. Gird 52, 67, 145
Cunningham v. ^ Gordon Castle" ... 129
Currey, exparte • ... 916
Cnrriet ex /Mirfo, Sir Donald 477
Curtis, ex j»arte 116
Customs, ex parte The Principal Officer
oz ... ... ... ... ••. vy4
Davis V. Madhlivs ;•• 601
DaviFon Brothers v. Colonial Covemment 284
9f n V. Joubert
Dean v. Webner A Co. ...
De Klerk, ex parte T. C.
De Klerk, ex parte P. P.
De Klerk V. Niehaus
De Lange and Others, re
Delponte v< Delponte
,9 V. Delponte and Da Preex «.. 474
De Marillac V. Bruyns 180,311
., V. Reiohelman and Others 503
«••
... 121
328,388
... 130
66, 117
... 160
Denton St Thomas v. Begley ...
De veling, ex parte
De y illier^i, ex parte D. J.
ex parte J. J. ...
ex parte A. P.
ex p€trte D. P.
(minor), re
V. Burgers ••• ...
V. Urease •'.. ...
V. Stiglingh*8 Executor
De Waal, emparte-D,
,, exparte J. H. H.
...
...
.••
... v98
... 2
... 19
... 122
... 210
... 277
... 818
... 61
... 230
... 412
... m
... 877
... 120
De Wet, re
Dibben v. Cape Divisional Council 394, 447
Divisional Council of Stellenbosch v.
Myburgh 271'
Dodd's Insolvent Estate, re
Doll, re ... .*» ...
Doni Zozo, ex parte
Dornbrack, exparte
Drake, ex pttrte ...
Dramat v. Gamar
...
•••
«..
•..
...
*.•
TABLE OF CASKS.
•• •
lU
Db FIcmv, ex parte^ P. J» A« •#•
at tx parte J. Q. H. 8.
jt Estate, re
I>i Pk«ei T. Jaan
•••
PAOI
... 128
... 327
... 20
... 167
D^secaa r. De Beer 272
n A Co. T. Periot 50l
IHOck Befoimed dmrch, Ctpe Town» re 4
» 9, 9, Dordrecht, e:r
P^^ 231,271
Ik Toit, ear jMirte 2aO
„ (iiiiiioTB)»ex/Mrr<e ... ... 274
n T. CSlIiers 34^
•i T. Domingo 134
If '• -Wei ••• «•* ••• ,,, o27
9 T. Kolte 454
Pjw k Dyer t. Alexander 421
Ellon, Robins A Co. y. Taylor ...
Mmeades' InsolTont Estate, re
KUer't EzeciitorB y. Coxhead ...
Ittiott y. Bodk ...
EUnan, ex parte
Sfiot, ex /wf le
... 283
... 149
210, 286
... 384
... 502
... 501
Faoie y. CiUie
Fiuue y. Fanre ...
FOfti Samai, tx parte
Kdier y. Cutler ...
Hather, £B jMiHe —
flagg y. Fl^gg & Hason...
yictcfaer A Co. y. Short ...
.. .
...
...
...
...
...
...
... 271
... 503
... 310
... 501
... 2
... 172
... 160
Fottof and Another y. Pinker 277
„ and MacFarlane y. Pinker ... 323
Forreit ACo. y.May&Co 95
t, y. Stagier 59
Forth y. Gmnewald 279
F(Mtiiin*B Eatate, re 475
» Exeentors y. i^braham ... 80
^ Troatee y. Baatard Fortnin 384, 501
„ ,, y. Breonan ... ... 384
», y9 y. R«alooD 393
Foeriey ear ^Mir/e m. ... ... ... 8
Foerie y. R.M. of Worcester and
Thacker 62
Fox T. Walker 9l Sods 475
FaoKioft (minon), re 809
fhudken'a Kzeentovs, ex parte 898
PAoa
Pranzen, ei/wrte 280
Free State ProtipectiDg Syndicate y.
Minmaar 200
Friedman, ex psWe 267
Qaertner's Estate, re 160
Gardiner, ex /Mirfo 121
Garlick y. Broido 149
„ y. Gibson 122, 126
Gayin y. Mnuicipality of Oudtshoorn ... 397
Gords, re 210
Gibson, tv 119
Gifford V. Hare 260
Giliet y. Colonial Goyernment 187
Gladstone y. Gladstone 474
Gleeson, ex|Mirfo 888
Globe Diamond Syndicate, re 118
Godionton, eaBjparie 309
Goga y. Resident Magistrate of Eokstad 476
Goldsworthy y. Goldsworthy ... 277, 433
Goosen y. Goosen 2, 86
Gooeen's Executrix, ex /Mir^e 310
Gordon (minors), ex parte Malmesbury
Board of Executors 318
Gordon (minors), re 388
Gould, ex parte 433
Graham's Town and Port Alfred Railway
Co. (in liquidation), re 602
Greeff, expavrte 320
Green, eas porle J. A. 88
„ exjoorieG. ... ... ... 309
, & Brioton y. Duraan and Another 91
Greer, ex fMirto 388
Grobbelaar y. Gons ... 19,815,388,483
Haines y. Haines ...
Hall y. Clarke & Co.
„ (minors), re
Hambly, re
Hand y. Friedman
... ...
...
...
... 209
..» ... Ii3
... 880, 382
120
... 278, 384
Hand & Co., Liquidator of y. Friedman 277
Harcombe Bros. y. De Kockand another 421
HBx%^exparU 278
Harris, ex /MxWe 20
y. Harris 12, 386, 404, 462
f»
Harte y. Frame 125, 277
Hatting (minors), re ,.. 309
Haumao, ex parte 28
Haupt v. Haupt ... « 49
IV
DIGEST OF CASES.
PAGB
Haupt's Insolvent Estate, f'e 62
Hausmann v. Hausmaun 274
Haworth v. Haworth 20
HsLjwsLTd, ex paiie 310
Heathershaw^s Estate, re ... 149, 185
Hedley Brothers v. Lange 323
Heinemaun v. Du Preez 463
Hendrikz, ea; ;)aW« 343
Herbert v. Town Council of Cape Town 272
Herbsty re ... ... ... ... ... 118
Hejdenrych y. Abas and Satea Ill
„ V. B6yce 317
„ V. T>xi Freez 1
„ V. Falconer 192
„ V. Kirby 102, 228
„ V. Woolven 406
Hiuton V. Hinton... 132, 230, 271, 380
Hoffa, exparte 404
Hofmeyr, re Estate of J. H 398
Hollaod, ex par/e J. A 130
„ ex parte V 270
Hosking's EstatCi re 96
Howes, expa'iie 381
Hubbard v. Baggeley 384
Humphries, exparte 433
Hutton, ex par^e ... 19
Incorporated Law Society v. Lloyd ... 12
Indwe Co. v. Colonial Government ... 220
Irwin V. Garlick 122, 126
Jagger & Co. v. Burman 283
James, alias Najiemodien, re Estate of... 345
Jansons v. Jansons ... ... ... 396
Jewell and Rutter v. Hazell & Steer ... 23
Johannes, re .•• ... ... ••• 230
Johnstone's Insolveut Estate, re ... 601
Jones, exparte ... ••• ... ... 394
,. re Estate of Thomas 475
„ V. Matthews 86
Jooste's Estate, re 503
Josling & Co. V. O'Connor 82
Joubert v. Trengove 1
„ 's Estate, re ... ... ... 387
„ and Trengove's Insolvent
Estate, re •*• •■• ••• ••• 12
Joyner*8 Executors, eaJiMtr^e 398
Judd, re ••• ••• •■• •■• ••• 9o
Juta*B Estate, re ... ... 274
KaffVarian Colonial Bank, re
Kalm V. Shabodien ft Co.
Kelman and Bernstein, exparte
Kenealy, eas|Kirte ...
„ exparte,,, ...
Kennie v. Mustard
King Bros, v; Colonial Government
King A Co. and Another v. Begley
•••
PAQB
829,' 38S
... 315
... 421
... 19
... 377
... 276
... IdO
... ^W^k
Kirchhoff, exparte — re Meataer*! Estate 56
Klein v. Klfein ... ... 468
Klinkv. LeDa ..; 129
Koenig & Co v. Yadasz 454
Kotze v. Kotze 314
Kiugel, exjpaWe 2
Krynauw, ex jparte 421
,, re ... ... ... ... i^io
'„ 'd Executors V. Sedan ' 62
Kulu, re 128, 186
Labnschagiie (minor), re 810
Lamberts v. Brauer 1
Lane, ex parte 278
Landman's Insolvent Estate, re ... 281
Lang V. Ahnied Isaac & Co ... ... 877
Lategaxi, eirj>arte..; ... 160
Lawrence v. Bonniweli and Veale ... 118
Lazarus v. Lewis 42
Lee^ ex parte 277
Leffler v. Hudson. • ,.. 100
Leicester Consolidated Mines v. Colonial
Government 418
Le Roux, exparte J. J. F 317
„ exparte P. C. 277
Letterstedt's Estate, re 502
Levies Insolvent Estate, re 161
Levin v. Babinovitz 277
Levy, exparte ... ... ... ... 343
Levyno Bros, ex^rfe 271
Lewin v. Swart 428
Lewis V. Lazarus 42
Lind V. Kleyn ... ••• ... ... 383
„ V. Pitout ... ... ... ... 117
Lindenberg & Dj Yiiliers v. McMillan 474
Lischtty v. Worcester Municipality ... 348
Lizamore (minors), re 12
Loescher v. Kumst 328, 428
}, ,) „ ••• ••• ... Wf f
Longden, ex />ar^e ... 398
Loubser, ex por^e 2
„ Minor, re 42
TABLB 01^ CAftfla.
Lmw ▼. AndiBwa *
LoawTcns and Others
Olhen • •••
LiiBli T. Ben •••
Laji, txparim V. M.
„ ex paHt Li. M.
Lfooa T. Hcaeeo ...
PAOB
T. Potgieter and
• •• ••• ••• 1m
••• ••• ••• ^20
*•• ••• ••• AOv
• ■• ••■ ••• WW
• •• ••• ••■ ^Of
Mtafldprp, ex jMirie 116
MaeliiMKh, es jMUta 4
}iadcie, Duun A Co. v. Port Elizabeth
Harbour Board ... 318
Magistrates* Cases Reiieired , 289
.llahed*a Bstate, re 62
Uahimia t. Mahuina .,. ... 25, 130
llaUierbe, (» ixifi# G. J. 817
„ ex parte i5. P. ... ... ... 309
ICaoia T. Resident Magistrate of Her-
s e u c i ■•• ... ... ... ... 09
Ifancbester Corporation v. Perkins,
Gtaham A Co 224
lUrais, ex/Mtrto A. J 185
^ ex piirte A, J,, J. *Bon 317
Mareasseo t. SkifTe 174
Harico Board of fixecntors v. Anret 252, 442
MartU V. Visser 281
Mamewicke t. S.A. Mutual Society 19, 844
Ifarah, ex parte ... 434
to ▼- Schmidt's Exeoutors 229
liarteU & Co., E., y. I. ft F. MarteU 384, 385
Maniniu, «e/NErte .,. 477
IfsakiBfr'a Executors r. Van ZjFs
Executors 229
Mason t. Bernstein 489
If aster V. Cloete*B Executor 343, 477, 494
n T. Cook's Executor 62
„ T. Dickson 474
tf- T. EsterhujTsen's Executor ...343
„ T. Ferrdra's Executors ... 122
» ▼. Geldenhnys* Executor 343, 496
„ T. Hayman's Trustee 20
,9 T. Uay ward's Executors ... 280
M T. Jones's Executors 309
„ y. Kimlo 383
„ y. King's Executors 277
,» ▼• Louw ... 399
„ T. Nel's Executors 280
,t V- xotgister ... ... ... 474
„ y. Boode 474
„ y. Steenkamp's Executors ... 270
^. y. Talbot's Sureties 270
Matthows y. De Swart ..«
May y. Ayenant ...
MlMinibonduna y. Dhwani
McDonald, ex parte J. •• .
„ ex parte J M.
MoEwan, re Ann ...
•••
...
PAOS
... as
... 809
I. .•• llo
.•« w4o
... 122
457
MoLeod y. Henry Perrins, Jun. •*. 121
McLougblin y. Liberman and another... 244
Meder y. McLeod 343
Meier y. Marquardt 117
Metotjes, MB jMirto .•• ... ... 2
Maixonheimer y. Dieterle 490
Metropolitan A Suburban Railway Co., re 42
Meyer y. Meyer's Executors 288
„ 's Estate, re 62, 96
Mgiet's Executors Patiye and Another
y. JLya ... ... ... ..« 4Sf|i
Miles's Estate, rs 390
Mills, EsUte of Sir Charles, re, 123. 278, 394
Minchin, eaB/XMte 343
Minnaar, ex/Mirto 817
Mitchell's Executrix y. Registrar of
Deeds, King William's Town ...211
Moll y. Ciyil Commissioner of the Paarl
and Others ,., ,. 454
MoUer y. De Kock 129
Molony y. Cheifits .•• 478
Morgan, ex parte ,.• ••• •#• ... 149
Morum Bros, y. Hack 467
Mostert's Estate, re 278
MuUer, re ... ... ... ••• ... 95
Municipslity of Alice y. Crallen • . 409
Murray, tfx/Kirto .., 209
„ 's Estate, re 117
M and Others y. R.M. of Cape
Town and Others 487
Mutual Co. y. Coetzee 209
Nash y. Jones and Another 277
„ y. W. Joues and F. T. Jones ... 388
Natal Bank y. Victor Woolff ... 383, 392
Nathan, ex parte 277
iMei, re ... ... ••* ... ... mO\}
„ ex parte ... ... ... ••• 421
M and Another y. Du Toit 200
Nicholson, ex parte 309
„ y. Myburgh 411
Nieuwoudt y. the Registrar of Deeds ... 238
Noonan y. Noonau 96
Noyember y. Noyember... 131, 185, 334
IV
TABLE OF CASES.
•••
Oak*8 Estate, re ...
** Oberoo/' re
OoBthuysen t. PieDaar
Opp€iy re ••• ••• ••• •••
ff V • vppoi ••• ••• ••■
Orr v. Scowen ... .#.
Orren, exparU
O'Sullivao V. Warburtoo
Oadtflbooro Towa Council, re ...
PAGE
... 42
... 44
... 406
... 122
278, 396
... 19
... 2
... 331
123, 186
Paari Fire A asur. and Tnwt Co., re 210, 476
...
...
• a.
...
...
...
• ••
...
t •.
• *•
434, 476
100, 117
... 474
... 117
... 158
... 97
... 399
... 271
... 379
... 2
... 262
... 11. 168, 298, 894
,., •*• ••• i«^
• «• ... ... xOt*
• *• ... 9««$, 474
Port Elizabetb Boating Co. (in liquida-
tion), re ... ... ... ••• 96
Port Elizabetb Harbour Board v. Mackie,
Dunn A Co. ... ... ... ••• 468
Potgieter and Others v. Potgieier and
Otbers 602
Powell's Estate, re 467
Powley's Estate, re 386
Powrie v. Powrie 191
Principal Officer of Customt, ew parte ... 394
Pringle, ex parie 88
Pace V. Pace
Ptirker, re
„ y. Matcfaam
Paulsen, re
Peck T. Philip & Co.
K enn, re ••• ••■ •••
Perk8*« £ze<utrix, ex parte
Perrins v. Newlands
Phillip's Estate, re
Pienaar, ex parte ...
Pinker v. Oill ...
Pirie t. Pirie
Piton, ex parte
Pitt, ex parte
Plant, re
Qninn y. Gordon Castle
Rasmen's Estate, re
Bautenbach, ex parte ..^
Redelinghuys t. Van der Merwe
Regina v. Abel •••
v. Abel ... ••• ••
y. Booy Zana
T. Budd and Shortle ..
y. Collzea
y. Dora Keleman
tt
u
tr
>9
• t»
... 129
... 274
... 271
... 377
... 466
... 478
... 426
... 438
... 394
... 329
«•..
»9
f)
99
9»
>9
»»
91
9>
• ••
Beginar. Field
y. Jameson
y. Le Roux
y. Lodewyk Holomona ...
y. Maraia ... ■*. *••
y. Maigongo
y. Matroos and Otbers «••
PAGS
,.. 104
... 390
... 434
... 1
... 13
... 320
y. Mitchell ... 123
y. Nel ••• ••• ... 438
y. Btephen Picqu({rr and Gabriel
99
f)
...
...
881
... 88
... 1
... 46tf
•••
..« ISO
... 274
...
49
... 200
... 887
... 12P
... 380
...323
... 271
... 383
September ...
y. Stuurman
y. Yan Boyen
y. Viljoen
Reid y. The Suryeyor-General ...
Reinecke, re ... ... .*•
Rennie's Estate, re
Reynolds y. Oak
Rhoden y . Fourie . . . ... .'.«
Richards & Shea, ex parte
Richardson, ex parte
Richardson y. Warren
Robertson (minor), re
Robertson & Bain y. Carolus ...
Robinson, ex parte
Rolfes, Nebel A Co. y. Port Elisabeth
Harbour Board •• 438
Rondebosch Municipality, ex parte ... 2
„ y. Cape Dis-
triots Waterworks Co 482
Roode y. Jeptha ... ••* ... ••• 225
Roodt's Estate, re ... ... 327, 389
BjosSf ex parte 186
... 383
... 277
... 174
Roux, re J. P. ••• 475
rtf P. .•• ••• ••• ••• ^'O
Rowe y. Nel and Another «.. ... 380
Rudin, ex parte ... 388
Ryklief s Estate, re 378
„ y. Cohen
„ y. Neser
...
...
...
•••
...
Sakeer's Estate, re
Ssmey'e Estate, re
Samson y. Samson . •
ScKDlesi^ ex parte
Scanlen & Syiret y. De Villiers...
Schaap and Others y. Solomon
Schmidt (minors), re
Schoeman's Estate, re
... 344
... 118
... 51
... 209
... 9
.«■ 9d
... s^^"^
348
...
tABt£ 01^ CASES.
«•
vu
PAGE
SdioeBiui v. The Gape Ijime Co. ... 8fi0
SchocTcny. Da Pleuis 291
Sebolti T. Vmo der B7I and Another ... 327
BdioaBberg (minora), re 317
Scfaooiinad*s Estate, r# 388
Sdiraber y. S. A. Tobacco Company and
I^dington ••• ... ... ... 83
8diweii0r y. Mybnrgh 474
8coftt*8 Ante-nuptial Contract, re ... 240
9 Estate, re 389
Scanglit A Go. y. Marcasseu 107
Sedgwick A Co. y. Plumbljr 267
Scrricr y. Weiner 601
Shark, ca; parte 404
Shaw y. Oppennann 129
Shaw & Moorfaead, Reeeiyer of, and
Another y. Moorhead*8 Tmitees
and Another 319
Shear y. Bademeyer 46
Shearer'a Ezeeatriz y. Whitehead ... 186
Srodair y. Thompaoo. Ratcliffe ft Co. ... 381
Smit y. Smiths Exocatrix 142
Staitby. Haa ••• ••* ..t •«• 883
SBOok, exjpQiffs ••• •*. ... ••• 96
Snuits ft Go. y. Dnnn ft Co 11^;
Snnti ft Koch y. Van Jaarsyeld ... 82
Sodl, ecjMfie 344
fiiiTinan (mioorB}, ^^ 180
„ •.• ••* •*. 47o
y. Van Heerden ... ... 168
Soeker*8 Exeentors y. Lawrence ••• 224
Sohmon, cxjNzrie... 277
Saath African Aaaociation y. Angnstyn 2
„ y. King ... 185
Milling Co. y. Marais ... 148
Mutual Society y. DeWaal 50l
„ ,. V. Viyiera 50l
Standard Bank y. De Villiers 117
„ y. FUnders 19
Stanton, re 130
Steer ft Go. t. Rowlands 400
Blein ft Go. t. Hewitson ft Jeffrey ... 121
Stanmet, re 118
Stqiban Bros. y. The Annandale Baking
V/O. ••• ... ... ••• ... l^A
Steyn, ex parte ... ... 122
Stork, ev parte 326,389
Stri^iand'a Inaolyent Estate, r« ... 478
Stcoyon, ex parte ... ... ... ... 323
8tXBiwer» ex parte ... 278
n
ft
9*
PAOB
Stark ft Co. y. Dieterle ...
«•• 96
Swanaon y. Walker
••• 309
Swartbooi, ex parte •••
... 476
Swartz*8 Insolvent Estate, re
... 475
Swemmer y. Strydom
... 444
Sytner y. Cohen
... 16
Sytner y. Sytner
... 194
Table Bay Harbour Board y. The
Deputy Sheriff of Cape Town ... 312
Table Bay Harbour Board y. The
Master, ''Gordon Castle " 122
Tarry*B Estate, re 882
Tennant, ex parte 503
Terblanm, ex parte 180
Teubes v. Lakas 42
„ y. Matthews ... ... ... 51
Thacker y. Fourie 182
Theron and another v. Schoombie ... 213
Theuois8en*s Entate, re 386
Thomas y Thomas 374
Thompson y. Barkly East Rinderpest
Committe-) • 414
Thompson v. Brown 479
Thompson and others y. Bennett ... 192
Thorn e, Stnttaford ft Co. v. Effendi ... 317
Town Council of Cape Town v. Falconer 384
„ „ ,. y.Murison 95
Tregidga & Co. y. Siyewright, N.O. ... 67
Trenley, Birch ft Co. v. De Villiers ... 95
Tniter, ex parte^ A. R , 377
„ ex parte ^ J, 1^, J ... ••• ... 209
„ v. Truter 345, 394
Tarvey y. Bradfield 119
Tyfield, fxjiorte 877
Union Bank re 12, 20, 210, 274
Union Boating Co. (in liquidation), re... 95
Uys y. Western Province Exploration
Syndicate 384, 404
Yadasz v. Koenig ft Co
... 820
Van den Heever v. Du Toit
... 66
Van der Byl, ex parte •••
... 149
„ ft Co. V. Lucke ...
... 95
,9 „ V. Poole ...
... 117
y, „ y. Schmidt ...
884, 392
„ ,, y. Swindell ...
... 884
„ and Others v. Scholtz
210, 327, 380, 468
TABLE OF CA8B6.
PAOB
Van dor Merwe's Eetate, re » 389
„ V. Vo8 329
Van der Poel v. Goetzee 404, 474
„ 's Executors v. Malan 474
Yan der Spuy v. Colonial Goyernment 427
„ Westhaizen, «x jporltf 2
^ „ V. Van der Wert-
huizen »•• ••• ••• ••• '388
Van Gass v. Taylor and Tnisteee and
J. andT. Van Gass 423
Van Gass* Executors y. Van Gass and
Others 454
Van Gass* Insolyent Estate, re 382
Van Heerden, ea;/?ar<6 277
y, „ (minors), re 380
„ „ y. Van Heerden 209
Van Niekerk y. Fagan 57
\f y. Van Niekerk 176
's Insolyent Estate, re ... 231
(minors), re 42
Van Noorden, ex parte 19, 95
Van Oudtshoom's Executors y. Van
Gudtshoom's Executor Daxi?e and
Others 423, 494
Van Pelt, eo; iHMie 2
Van Hensburg (minors) re 380
Van Rooyen, ex parte 283
3, *s Insolyent Estate, re ... 478
Vin Ryneyeld, ex /Mzrfo 116
Van Scbalkwyk y. Hauman 195
Van Sittert, ex jMrrfo 83
„. r. Van Sittert 123
Van Zyl, ex |>arte P. A ... 2
„ ex parte Q. 3 <• ••• 473
„ (minors) re 318
„ y. Van Niekerk 383
Venter, ex jpctr^ ••• ••• ••• ••• 117
Viljoen y. Hamman ... 240
„ y. Viljoen ' ... ... 97, 123
Villafre Management Board of Berlin y.
ft
Keth •••
'iTisagic, re
„ (minors), re
Viyiersy. Grcsse...
Vb8loo,e«;>fl^
•••
... Oa9
... 117
... 131
... 1
... 392
PAGE
Walker, ear /ww/e 270
„ y. Price ... •.. .•• ••• 293
„ 's Executors v. Eksteen's Exe-
cutrix — ex popie Van Beden ... 422
Walsh, re 122
Walter, ear jparte 343
Wanklyn y. Le Grew 2
Warren and Osborne y. Munro Brothers 316
Watson A Go. y. Broadlent A Oo. ... 121
„ „ y. F. L. Broadbent .« 509
„ „ y. M. T. Broadbent ... 3<«
Webner y. Bam 228
W«lls y. Lippiatt 2
Welt, ex parte ..* ^^1
„ V. Welt •. ••• 386
Weymark y. Weymark 279, 386
Weyuack, ex parte 130
White y. Adams 161
White, Ryan & Co. y. Greenfield ... 121
Whitehead) ex /lorte 457
„ y. Shearer's Executrix 817, 479
Will y. De Juy **
Will V. SchmoU & Co 501
Wilson (minors), re 309
Wilson and Oinamon y. Hirshler ... 289
Windley y. Fayre ... ^^
Winquist, re • *'
Winlerbach v. Worcester Municipality 385
Withinsbaw & Co. y. Lindsay 122
Wolbuter y. Maddison 246
Wolstone y. Woktone ... 12, 160, 274
Wood y. Myburgh 229,240
Woodhead, Plant & Oo. y. Gully 75, 120
y. Pedersen and
Another ... ••• ••• ••• **
Woodhead, Plant & Co. y. The
"Gregorio" • ...'ISO
Wordbn y. Wordon .' — "385
Wright, Crossley & Co. V. The Royal
Baking Powder Co. of NeW York... 405
Wynne, ex parie ... ... -— — *
...
...
Zieryogel, re
Zozi y. Nanisi
ZwatBnstein y. Jones.
•••
... 68
... 3»
Ml
...
CASES DECIDED IN THE SUPREME COURT,
SUPREME COURT.
[lt«foK the Htghi Hon. Sir J. H. DS Villdebs,
K.C.M.G. CCbief Jueiioe), Him. Mr. Justice
BocHAiiAH, and Hem. Mr. Jusiioe Maas-
DOBP.^
IBQIHA T. VAN BOTSK.
• 1897.
)Jan. 12Ul
Liqoor Licence — Act 28 of 1883, sections 76
and 85 — ^Penalty — Forfeiture.
The Chief Justice said: Amongst tiie oases
whidi came before me as jndge of the week was
ifaii of the Qoeen t. Yan Boven. It was tried
iMfore the Assistant Resident Magistrate of
M almeabiiry, at a Court holden at Hopefield,
iior oontraTention of the 76th section of Act 28
o€ 1S83. The CTidenee is clear as to the guilt,
b«i the Magistrate, in passing sentence, ordered
tibe a<eeciBed to pay £6 or undergo two months*
iaapHaimmeiit, and the licence was declared
forfeited. The 76th section only authorises
11m M««istnite to declare the licence forfeited.
I aeafc the case to the Magistrate, with an
as to what section he had in view when
itenced the man to pay a fine. He
me to the 86th section, which provides
a fine may be inflicted for the contra-
of any of the provisionB of the Act for
no penalty is specially proTlded. The
is that a penalty is specially provided in
TS, namely a forfeiture of the licence.
This section 76 is clearly not one of the sections
vliidi would hUX under the 85th section. We
■ni of opinion^ therefore, that the sentence of
siioiild be (luashed, though, of course, the
win be declared forfeited.
f 1897.
(Jan. 13th.
IIMA T. LODBWTK BOLOM088,
▲UA8 ABHADUB PLAATJE8.
Mr. Justice Buchanan said that in this
eaae which came before him as judge of the
week, a pcepaiatory examination was held by
fte Beaadent Magistrate of Knysna, on a charge
ef slore-bfeaking with intent to steal and theft.
The papers were sent to the Attorney-General,
aad the Attom^-Oeneral remitted the case to
the Magistrate for Mai on the oharge of theft
B
only. The Magistrate, howcTcr, charged the
prisoner with store-breaking and theft, overlook -
iug the reservation. He passed a sentence of
twelvemonths' imprisonment on the two charges,
but said that if he had only convicted on a oharge
of theft the sentence would have been only six
months. The sentence will therefore be re-
duced to one of six months* imprisonment with
hard labour.
PROVIBIONAL ROLL.
CX)IX)NIAL OKPHAN OHAMBBB Y. HUNTEB.
Mr. Tredgold applied for provisional sen-
tence for the sum of £126, interest from July 1,
1896, to December 81, 1896, at 6 per cent, on a
mortgage bond for £1,400.
Granted.
JOUBEBT y. TBBNGOVJB.
Mr. McGregor applied for final adjudication
of the defendant's estate.
Granted.
LAMBBBTZ T. BBAUEB.
Mr. Buchanan applied for provisional sentence
on a bill of exchange.
Granted.
HBTDENTBOH ▼. J. S. DU PBBBZ.
Interest — Limitation to amount of piinci-
pal.
Mr. McGregor applied for provisional sen-
tence on a mortgage bond for £60, with interest
at the rate of 8 per cent, from December 20,
1882, and asked that the property specially
hypothecated be declared executable.
Order granted, limiting the amount of in-
terest, however, to the amount d the capital.
TIYIBBg v. OBB8SB.
Mr. Maskew applied for provisional sentence
for £96, with interest from March 14, 1896.
Provisional sentence granted.
DRAM AT v. GAUAAB.
Mr. Graham applied for final adjudication of
the defendant 'b eetate.
Granted.
S.A. ASaOCIATION V. AUGUBTYN.
Mr. Mabkew applied for provisional sentence
for £54, being twelve monthB* interest on a bond
for £900.
Provisional sentence granted.
ILLIQUID ROLL.
WELLS V. LIPPIATT.
Mr. Buchanan asked for judgment under Bule
329D for £56 for goods sold.
Granted.
COLONIAL GOVERNMKNT V. NOLTZYKOP GOLD-
MINING COMPANY.
Mr. 8heil (Acting Attorney -General) applied
for judgment under Rule 329D for £864, licence
money due in respect of mining claims at
Knysna, with interest a Umporc nwrae and
costs.
Granted.
GENERAL MOTIONS.
WANKLYN V. LEORBW.
Mr. Buchanan applied for judgment under
Rule 329d for £198 168. 3d., goods supplied, less
£64, together with interest a tempore viorac.
8CANLEN AND SYFRKT V. DB VILLIERS.
Mr. Close applied for judgment under Rule 329d
for £64 lOs., with interest a tempore nwaa^ and
costs of suit, the debt being owing on balance
of account for professional services.
Granted.
ADM IB6 IONS.
The following admissions were made :
Daniel de Waal, advocate; William James
Wynne, conveyancer; Gertrude Blather, trans-
lator ; Carolina Sophia van Pelt, translator ;
Pieter Adriaan van Zylj translator ; Hendrik
Adriaan Meiutjes, attorney and notary.
BBUABILITATI0N8.
The Court granted the following rehabilita-
tions : Johan George Fourie. jun.. John William
Orren, Maria Elizabeth Hauman, Charl
Jacobus Krugel, Johannes Frederick
Pienaar, Andrew Develing, Marthinus Petrus
Loubser, and Johannes Hermanus van der
Westhuisen.
TUB PHTTITION OF HCNBIBTTA A. GOOAKN.
Mr, Jones applied for leare to sue
by edictal citation in an action against
her hasband for restitution of ooDJagml
rights, failing which for divorce, by reaaon of
his malicious desertion, and for an order giTUiR
her the oustody of the two miDor children of
the marriage.
Order granted; personal service if poesible,
failing which, publication in the JohanBesburi?
" Star " and Pretoria *' Vollisstem," with leav» to
serve the intendit and notice of trial with the
citation. Return day, February 18.
THB PETITIOK OP THB RONDBBOflCH M0NIOI-
PALmr.
Mr. Graham applied to make ahflolute
the rule niH for the attachment and
sale in execution under the Titles Regis-
tration and Derelict Lands Act of
1881, for payment of the rates due thereon of
certain piece of freehold land, marked No. 235,
on the Camp Ground at Rondebosoh, registered
in the name of George F. Parker, but abandoned
and left derelict for many years.
Granted.
S 1896.
IJan. 12th.
COLONIAL OOVKENMKHT V. COOK
BROS.
Appeal— Privy Council— Recogniaanoe.
An appllcntion to enfreffta recognimnce for the
(lac proH€cution of an apjmd to the Prlrt/
Council cannot be heard iriVwut notke to (he
mretkx. At a f/eneral rtde an apidkation to
discharge leave (fiven by the Supreme Court
in appeal shouUl be made to the Privy Cbiwt-
ciL
This was an application on notice to the re-
spondents, for an order estreating the recogni-
sance entered into by them and discharging th«
order of the 19th March, 1896, granting them
leave to appeal from the judgment given in the
action brought by them against the Colonial
Government or for other relief as set forth in
the petition. The respondents were further
called upon to show cause why the application
should not be granted with costs.
The petition of the applicant. Sir Gordon
Sprigg, K.O.M.G., Prime Minister and Treasurer-
General of the Colony, set forth :
That on the 11th March, 1895, judgnient was
given in the Supreme Court in favour of the
Cokiaial GoTemmeiii in an action ioBtituted by
ths ptcMsi respondents, for a declaration of
i^tB and ilfiTnagftfl.*
natonttke 19th Harch, 1895, the plaiotifb
applied for and obtained leare to appeal to Her
Maici^ in Her Privy Council from the said
jadffmeot«
That within three montba thereafter, the
pla i atifFB entered into a recogniBance under Rule
98, inr the due proeecution of the appeal, but
that flooe then no atepa whatever had been
lakea hy them to prosecute their appeal.
After referring to Bnles 2 and 5 of the Privy
OooBcil, the petition went on to allege that in
aceordanee with the well-eetahliahed practice
pnvailinf; in the office of the Registrar of the
Seprcme Court, it was the duty of the appellants
penonally or throuf^h their attorneys, to give
•siiee to the Beglstrar of their intention of
Vieeecding with the appeal, and to request that
the reeorda be prepared, whereupon the Regis-
trar prepares the record, snd the prescribed fees
ate psid by tiie appellants.
That the appellants in this case had failed to
give the required notice, and had neither paid,
■or<rilmdtopay, the fees payable in connec-
tion with the preparation and tranHmission of
the records, and had thereby failed duly to pro-
ssente their appeal.
That by reason of the aforesaid failure of the
appellsnts. the Colonial Government had been
debarred from obtaining the benefits of the
rules of the Privy Council.
That the delay of the appellants in duly pro-
seeating their appeal was vexatious and unrea-
sonahle, and the Colonial Government was
tmbarrsased by having the appeal held over
indefiaitely.
The prayer was for an order (1) either estreat-
ing the recognisance entered into by the appel-
lants snd discharging the order granting leave
to appeal, or (2) fixing a time within which the
appellants must duly prosecute their appeal.
The respondents tiled an affidavit, in reply in
which they detailed various circumstaneeB (none
of them very weighty) which had contributed
to the delay, and alleged that they had never
ahsndored their intention of prosecuting the
appssL
Mr. Sheil, Acting Attorney-General (with
him Mr. Schreiuer, Q.C.), for the applicant •*
The object of Kule 38 in requiring that the party
aimellant and his two sureties should enter into
the TteoKuiatLDee provided for by the rule is
tvo-fold :
* Vide Cook Bros. v. Colonial Qoremment (5 Sheil
M7).
I Ist. That the appeal should be duly prose-
cuted and :
2nd. That the costs of the party respondent
should be secured.
No mention is made in our rules or in the
rules of the Privy Council as to the time within
which an appeal munt be prosecuted after leave
to appeal has been given. But an indication is
afforded in Rule 2 of the Privy Council that the
appeal should be prosecuted as soon as possible
after leave has been given to appeal.
It could never he contended that the Privy
Council in framing that rule intended to inter-
fere in any way with the practice of the
Colonial Court from which the appeal wan
brought as to the payment of oflice fecH in con-
neetion with the preparation of the record :
In fact the concluding part of Rule 2 shows
that it was contemplated that all fees and
expenses should have been paid before the
despatch of the record, otherwise it would be
impossible for the Registrar to ^ive the certifi-
cate required by the rule.
Consequently until the feoH have been paid
and the Registrar instructed to prepare the
record there can be no prosecution of the
appeal.
In the present case leave was given to appeal
nearly two years ago, during which time no
steps whatever have been taken to prosecute
the appeal.
There has therefore been a breach of one of
the conditions of the bond, viz., that the
appeal would be duly prosecuted, and the
Qovernment is now entitled after the length of
time that has elapsed to come to the Court and
ask that the bond should he estreated.
De Villiers, C.J. : How can the Court estreat
the bond if the sureties are not before us ?
They have not been made parties to this appli-
cation.
Mr. Sheil : Th9 sureties can be in no way pre-
judiced. They were not made parties to this
application because no costs had been incurred
by the Government in respect of which they
could have been held liable. But the main con-
dition of the bond, viz., due prosecution of the
appeal, has been broken and it is in consequence
of that breach that wc ask that the bond should
be estreated,
De VilHerd, C.J. : But has the Court jurisdic-
tion ? Should you not go the Privy Council ?
Mr. Sheil : It is submitted that this Court
has jurisdiction. The bond was entered into in
this Court, and the order of the 19th March,
1895, was made conditionally on the bond being
entered into and its covenants complied with.
In 1831 when appeals were brought from this
Colony direct to the King in Council, this Uourt
held that notwithstuidiDg that the appeal
pending it had jurisdiction to dismiss an appeal
which had not been duly prosecuted. See
MorrUoH Y. Anderson and Stenh^ute (1 Mt^ni.,
527).
In the present case also the appeal has not
been duly prosecuted and the party respondent,
the Goyemment, is clearly entitled to come to
the Court and ask that the order of the 19th
March, 1896, should now be eanoelled.
De Villiers, G.J. : How can the Court cancel
a final order ?
Ml. Sheil: The order it is submitted was not
final, it was interlocutory in its nature,
inasmuch as a condition was attached to it
that the conditions of the recognisance,
required by the S8th Bule of Court, should be
complied with, and this the appellants bare
failed to do.
Mr. Innes, Q.C. (*vith him Mr. Graham), for
the respondents : Section 50 of the Charter of
Justice settles all conditions on which an
appeal is allowed to the Prlyy CounciL For a
period up to three months the grant of leare is
provisional or interlocutory, after that if
security has been provided it becomes final. As
in De Montmari r. Board of ExeoHtoTf (4
Juta, 61), leave to appeal can be withdrawn if
that condition fails. The Privy Council must
make its own rules as to appeal. Take a pre-
cisely analogous case, our Resident Magistrate's
Court Act (No. 20 of 1856) does not provide for
"due prosecution of appeal," but this Court,
the upper Court of Appeal, has, even in cases
where the record was still in the Court below,
over and over again said it would decide what
was a fit and proper time within which to
bring on a case on appeal. Rymer v. Solomon
(4 Sheil, 223). See also MoPher$on*$ (" Practice
of the Judicial Committee, Privy Council *' (page
94). In this case undoubtedly there has been con-
siderable delay, but look at the inconvenience
of the present course, even if the Court has
jurisdiction, but we contend the Court \%funetu4
officio. With regard to Stenhoute't ea$e it does
not appear to have been argued on this point,
viz., of the time to appeal. The only condition
in section 50 of the Charter of Justice is that
the recognisance be entered into in the three
months. This case is probably a oas^n oniusu^,
Mr. Sheil in reply.
De Villiers, C. J. : The object of this applica-
tion is two-fold: to estreat the recognisance
entered into by the present respondents for the
due prosecution of their appeal to the Privy
Council, and to discharge the order of this
Court granting them leave to appeal. As to the
recognisance, it is obvious that the Court cannot
grder It to be estreated without du^ uotice to the
sureties. They are interested in snob an order,
even although the immediate effect of the order
might not be to render them liable for the pay-
ment of any sum of money As to the discharge
of the leave to appeal, I am not prepared to say
that this Court has no jurisdiction to withdraw
its leave on suflScient cause shown, but the cause
shown in the present case is insufficient. The
circumstances of the case of Morrison v. Ander-
son (I Mens. 627), which is relied on by the
applicant, were wholly different from thoae of
the present case. There had been a delay of tea
years, there was clearly no intention to proceed
with the appeal, and the only question argued
seems to have been whether the obUgation of
the recognisance could be enforced by motion
instead of by action. As a general rule, in my
opinion, applications to discharge leave to
appeal should be made to the Privy Oouaeil.
In the present case there has been eonsiderable
delay, but not of sueh length as to justify this
Court in concluding that the intention to pro-
secute the appeal has been abandoned. The
application must be refused, but there will be
no order as to costs.
[Government Attorneys, J. k H. Beid ft
Nephew ; Respondent's Attorney, C. C. Bilber-
bauer.]
THB PETITION OF WILLIAM MAOIKTOSH.
Mr. McGregor applied to make abso-
lute the rule nisi issued under the Titles
Registration and Derelict Lands Act, 1881, for
transfer to petitioner of certain land, perUon of
the Rufane Vale Estate,Tort Bliiabeth, rsMrved
according to diagram for roads which were
never made, petitioneir being owner of the whole
of the land sub-divided, and he and hia pre-
decessors in title having occupied the said re-
served spaces for about thirty-seven years.
Granted.
In re OONSIBTOBT OF THB DITTGH \
r. J
1896.
BEFORMED OHUBCH, CAPE TOWN. ) Jan. 12th.
Burial ground —Alienation — Grant — Con-
dition — FUlei-comm isftum — Trust.
Certain land having been granted by the
Govemnient to the applicants to be used an a
burial ground for the inhabitanttt of C^ipe
Town^ the applicants allotted and trafis-
ferred differefU plots for the puriMne of
erecting vaults thereon, but the traptfifers
icere not registered in the Deeds Office.
Under section 64 of Act 4 of 1883 the
Governor has direct^ that buriah on the
lajid shall be diacontitmed.
The a^icauUy having told a portiofi of the
IomU fgr the purpowe of erecting thereou a
Huguenoi Memorial^ npidieil to the Court
for its mtnct'ion to $uclt mle and tnmrfer.
Held that «urA sanction could not be granted
VHihoul iht consent of the Gov^rmnent and
of the heirs of ilie aUottees whose uiults
had been erected icUhin the portion so pro-
ptMed to be transferred.
This was an application to make abaoliite
the nde nisi for authority 1o petitioners to trans*
fer to the Hngnenot Memorial Committee a
certain portion of the land in Cape
TowB granted to the said church in the years
1755 and 1801 for burial purposes, such land
being no loager used as a graveyard.
Mr. Innes, Q.C. (with him Mr. GrahamX
appeared for the applicants.
Mr. Sheil, Acting Attorcey-General (with him
Mr. Bisaet), appeared for the Colonial Govern*
ment.
Mr. 8chreiner, Q.C. (with him with Mr. Boos),
appeared for certain parties who had filed
affidavite to oppose.
The mle nisi was granted on the petition of
the Reverend Abraham Isaac Steytler, V.D.M.,
and Pieter Marais, members of the Consistory
(Kerkeraad) of the Dutch Reformed Church,
Cape Town, acting for and on behalf of the said
eonsistory.
The petition set forth :
1. That your first-named petitioner is one of
the ministers of the said Church and a member
of the said consistory. Your second-named
petitioner is an elder of the said church and is
also a member of the said consistory.
2. That yonr petitioners have been jointly
authorised to approach your Honourable Court
on the matters hereinafter set forth, and beg to
annex hereto, marked A, a copy of the resolution
of the said consistory granting such authority.
5. That on the 2nd day of July, 1755, a grant
of a certain piece of land, in extent 429 square
roods and liO square feet, was made by the then
Governor of this colony to the deaconry there-
inmentioned and hereinafter referred to, to serve
IS a burial place or churchyard for the inhabi-
tants of this city, a certified translation of which
grant is hereunto annexed marked B.
i. That the said grant was made at the
request of the Consistory of the Dutch Reformed
Church as appears from the minute books of
the said consistory, inasmuch as at the date of
the application therefor and issue thereof tue
existing borial ground of the said church
9on}d not be iitillsed for further burials owing
to a severe epideukio of smaU-pox^hsa preratat
in this oity. The burial gronnd for whieh the
said grant was substituted was situate adjao^t
to the present Dutch Reformed Building and
constitutes the land upon part of whi^ the
University and oAer buildings are now ereeled,
the other has l)een converted into what is dow
Bureau-street
6. The deaoonry mentioned in the said grant
was an administration «f deaeons of the' said
Dntch Reformed Chureh (whkfa was #t that
date the only eeolesiastieal hoOsf in this oity),
appointed and eontroUed by and aetiag la every
respect under the direoHons of the said eoasls-
lory, and the Mid deaoonry was eharged with
the care and execution of the charitable works
inatupiratcd by the sakl consistory,
d Prom the date of the issue of the Mid
grant up to the present time the said eonsistory
exercised sole and entire eoBtrol over the land
forming the subject of the said grant, and the
said land was In every way administered and
possessed in ownership by the said eonsistory.
7. That on the 8th April, 1801, the GOYcmor
issued a further grant to the said oonslslory on
their applieation for the enlaigement of the
aforementioned churchyard, in extent 886
square roods and 44 square feet ; a certified trans-
lation of the said grant is hereunto annexed
marked C.
8. That on the 9th February, 1808. a further
grant of land. In extent 8217 square hmkU and
112 square feet, was made by the Oovemor to
the said oonsistory on their application. In
addition to the aforementioned grant for a
burial ground, but the said grant is not aif ected
by the matters referred to in this petition.
9. That on the a6th day of February, 1880, the
trustees of the property then lately adminis-
tered by the Burgher Senate, transferred to the
said Dutch Reformed Church an extent of land
measuring 4 morgen 98 square roods 9&\ square
feet to be appropriated as a new burial place.
The whole of this land was, with the consent of
the Colonial Government, sold to various pur-
chasers for building purposes, and duly
transferred in the office of the Registrar of
Deeds of this colony. Tour petitioners annex
hereto, marked D, a copy of the letter addressed
to the said consistory by the Assistant-
Commissioner of Crown Lands dated ISth
April, 1978, authorising such sale.
10. That the land comprised in the grants
referred to in paragraphs 3 to 7 of this petition
and generally known as the Somerset-road
Cemetery, was from the dates of the saldgraats
up to the enforcement of the provisions of this
Act Ma 4 of 1883, entltied the ** Publlo HealUi
6
1
AH, 19eS,"«Md bf thd Mid eonilHory fer tlM
faiiBniieiit of deMM6d memben of the Mid
Anrdi And for Ui« purpow of other bwiiilf.
11. Hiai under uid by Tirtueof the funoTielone
of the Mid Act, the Mid oemeteries were on or
aboat the Uth d%j of Januarj, 1886, duly cloMd,
dnoe which date no intermente hnye taken plsoe
there.
IS. That sinoe that time, bnrials under the
rItM of the Mid ehnreh hare taken iilaoe at the
eemeteriei, allotted to the Mid ehureU Mpa*
ratelTf and nted by iti adherent! jointly with
ether denomtnationB at Haitland, and purohaf ed
by the eaid ehnroh at Mowbray, to which oeme*
terlee the remains of many pereone haTe been
removed from the aforementioned dieaeedborial
gronnd, and In the courw of time interest in the
•aid Somenet-road Cemetery hai, coneequent
npon its disuM and for other rcMon*, ceaaed.
The deeoendants of families originally having
vanltsor allotments therein have abstained from
keeping them In repair, and gnves and tomb-
stonM are not ths eabjeot of attention on their
part
13. That trt/m time to time, the Mid consis-
tory hM been obliged to expend considerable
same of money npon repairs to vaults, tomb-
stones and grates, and such expenditure has
affected the funds of the Mid church and ham-
pered the Mid consistory in the administration
•f traste committed to its charge, and the pro-
motion of ehnroh works and objects.
U. That your petitloneri respectfully submit
on behalf of the Mid consistory, that the main-
tenance and repairs connected with the Mid dis-
used cemetery will, in oourM of time, continue
to be a further tax upon the rescuroM of the
Mid church, and an impediment to its
woik.
Ifi. That the Mid consistory have received and
favouMbly entertained an applicati<» from the
Huguenot Memorial Committee of the Synod of
the Dutch Reformed Church in South AfriM,
for the purohaM of a certain portion of the Mid
disused cemetery, and on the 15th day of Sep-
tember last past, MUsed a letter to be addressed
to the Honourable the Secretary of Agriculture,
requMting his consent to the proposed aliena-
tion. In so doing the Mid consistory followed
the practice of obtaining the consent of Qovem-
msnt as had appertained in connection with the
alienation of Uie land, referred to in paragraph
9 of this petition. Tour petitioners beg to refer
your lordships to a copy of the said letter
marked X, and to the ultimate reply received
from the Seeietary, hereunto annexed marked
F.
1$. That the Mid consistory are still preparsi
to abide \ij the terms of their laid letter marki|
X.
17. That a survey has bMn made of the laal
proposed to be alienated to the Mid Hqgusnsl
Memorial Committee, and your petitioners b^
iMve to annex hereto, marked O, a diagram;
framed by Charles Marais, Government ma*
veyor, fully delineating the Mid disused ceme*!
tery. The coloured portion marked A, B, C, D,
on the said diagram, representing 284 square
roods and 88 square feet of land, is the extMt
which the Mid consistory is prepared te
transfer to the Mid Huguenot Memorial Com-
mittee for the sum of £1,601 lOs. Sd. sterling.
18. That the said consistory intend to and
will apply the amount received to work, pur-
poM^, and objects of the Mid Dutch Reformed
Church, as administered by the said consistory,
and your petitioners beg to submit that it will
be to the advantage of the Mid church to carry
the proposed transaction into effect.
19. That your petitioners are aware that the
said Huguenot Memorial Committee have for
sometime put sought to secure an eligible site
for the erection of buildings which they con*
template m a memorial, but have not been
successful owing to the high prices of landed
estate in desirable parts of the city. And your
petitioners are cognisant of the fact that the
site desired to be obtained from the Consistory
is considered eminently suitable for the Mid
purpoM and is in every respect regarded m
advantageous to the Mid committee.
20. That your petitioners are advised that the
Registrar of Deeds will not be in a position to
allow transfer to pass from the said consistory
to the Mid committee unless authorised thereto
by this Honourable Court.
The petitioners prayed for an order authoris-
ing the Registrar of Deeds to allow transfer
and conveyance to pass from the Consistoiy of
the Mid Dutch Reformed Church of Cape
Town to the trustees to be appointed tar the
time being by the said Huguenot Memorial
Committee of the Synod of the Dutch Reformed
Church in South Africa, of a portion of the
Mid property, to wit: a certain piece of land
mcMuring 284 square roods and 88 square feet,
dtuate along the Somerset-road In Cape Town,
part of the land granted oa the 2nd July,
1766 and 8th April, 1801, as aforesaid.
The following opposing affidavit was filed :
We, Pieter Jacobus Boonsaier and Goris
Boonsaier, farmers, of Hont Bay Vlei, Hout Bay,
make oath and My :
1. That on the twelfth instant a rule nUi was
granted by this Honourable Court, returnable
on the twenty-second instant, Mlling upon the
GovBOUBfiil uid All parties cowmmtd ho thorn
«■» why the prayer o£ eertain petitionera
ihoiild not be granted, for authority to the Regis-
tnu- of Deeds to allow iraosf er by the Consistory
of Ihe Dutoh Beformed Churoh, Gape Town, to
the Hqgneaot Memorial Committee of a certain
pottina of the land granted to the said ohureh,
is the years I7M» and 1801 for horial purposes,
neh land being no lunger used for such purpose,
ssd it beiagdceirable that it shonld be dealt with
as proposed, and the purchase price applied for
thelQrtheranoe of the ol^cclsof the said church.
t Thst until 1886 the cemetery, of which the
nidgroond forma a portum, was used for burial
SL Thst from the oommencement of the present
Mutaiy, the said cemetery has been the lust rest-
isg-phMe of manj men whose memory is still
ifvcnd throughout South Africa, and of whom
we msy, without inridious reflection, he per-
ailted to name Sir Andries Truter, Chief Justice
of the former Council of Justice, John Pringle,
•sd J. Barnard, Secretary to the Goremment.
4. That in the said portion of the said ceme-
tery* proposed to be alienated, there is an allot-
BMst which was sold by the said church to and
poffchssed by our late mother, Susanna Rebekka
Onmdeler, widow of Willem Court Boonaaier,
on or sbout the 10th Februsry, 1868, for the sum
^ Ai 13s. 9d. ; the title thereof is attached as
Asaezure A.
6. That thereby all right to the said allotment
bieame vested in the said Susanna Bel)ekka
Gnmdeler, and the Consistory renounced its pro-
perty therein and its rights thereto.
^ Thst our father, Willem Court Boonsaier,
€Qr mother, Susanna Kebekka Onmdeler and
niter, ApoUonia Boonsaier, hare been buried in
the Bsid allotment.
7. That we, as heirs to our mother, are entitled
toahsres in the said allotment^ and neither our
Biother nor ourselves at any time sold, disposed,
or m any other way parted with our rights
tiwrato.
8. That we ol^jeet to any dealing with the said
enseteiy, without our consent which would be
isoQOBisteot with cmr rights in the allotment
Bfrteisid, and we respectfully beg that this
HoBoerable Court will protect our rights, and
tte of all others interested in the said ceme-
tery by refusing to grant any such order as is
vkcd by the said consistory.
[Anaexure A referred to in above affidavit con-
tttssd inUr aim the following :
The nidersigned church master (kerk meester),
fUer of the congregation of the Dutch Beformed
Cfairch in Cape Town, Cape of Good Hope,
^ suthorised thereto by the reverend con-
ailQiy of said congregation, doth hereby
declare to have sold to Mrs. Susanna Behekka
Gnmdeler, widow of Willem Court Boonsaier,
for the sum of sixty-two ryksdollars and fti|ur
schUlings (or £4 18s. M.). and therefore doth
hereby cede and transfer to her in full ptoperty
a piece of ground situata in the outer cemetery
of said congregation, in length twelve feet and
in breadth ten feet, Bhynlands measvrs, in
order to erect a vaults and subject to the follow-
ing conditions, to wit : The vault to he erected
shall be marked No. 8il, it shall not be higher
ths[n six feet, Bhynlands measure, abova the
sur^ce of the ground of said cemetery.
The proprietor shall erect the vault at his
own costs, the repairs and other necessaries
shall be done by him, as is customary to be done
to vaults. Under the aforegc^ng conditions
the Consistory aforessid renounces all right and
title thereto.l
There were also several afllidavits (to the same
general effect as Messrs. Boonsaaiers) by
Messrs. Hohne, De Smidt, Holm, G. H. Moller,
Bev. D. P. Faure and Mrs. Marquard, the
several deponents being either blood relations or
connections of original lot holders. There wjas
also a petition to the Consistory signed by 276
such blood relations or heirs (of whom, how-
ever, a large number subsequently withdrew
their objections) protesting against the pro-
posed sale.
To these objections and affidavits the Con-
sistory filed an answering affidavit alleging
that Holm had no right to his plot, as he had
failed to comply with the condition of title by
building a vault and alleging as to the lots
claimed by De Smidt, Moller, and others that
the vaults had got into a bad state of repftir
and had been neglected by the deponents ; and
saying int^ alia, • • • .
9. That the Consistory have not recognised the
claims of heirs or deicendants of an original
allottee as having any suoceesion to the plot or
vault unless registration of such succession has
been effected with the Consistory, and we annex
hereto an instance of such registration in con-
nection with a certain lot numbered 186.
10. That we crave leave to direct the attention
of this Honoorable Court to the fact that the
area affected by the petition herein contains
over 112 plots, that the rule niH has been duly
published as ordered, and only six out of such
112 plots are affected by the affidavits filed in
opposition to the said rule, and that in respect
of two out of such six plots affidavits hava bean
made in support of the said petition by descen-
dants of the original iillottees.
11. That we respectfully refer this Honour-
able Court to the statement contained in our
petition, .pnd especially to paragraph 16thacaof»
8
wherein we expreei the wiUingoeee of the Oon-
BUtory to sbtde by the terms of their letter to
the Hononrable the Beoretsry of Agriculture
ooDBtitutiDg auoezure to the Mid petition, and
wherein the Oonsutory undertake the respon-
sibility of satisfying parties holding plot^s on
the gronnd. either by burying the bones deeper
than they are now or by removing them to
Mowbray or Maitland as may be desired.
IS. That we annex hereto the oorrespondenoe
whieh has passed since the issue of the rule
nwi, together with a list of the names of
original allottees of plots in the area affected
by our petition.
From the oorrespondenoe put in at the hearing
of the petition, it appeared that on the 15th
September, 189C, the Consistory wrote the follow-
ing letter to the Secretary for Agriculture :
The Consistory of the Dutch Reformed Church,
Gape Town, have resolved to sell, in lots, their
present and unused cemetery situate in Somerset-
road.
The title deeds of the said cemetery were ob-
tained from Government as a free grant, for use
as burial ground (Begraafplaats) by resolution
passed at the Oastle on the Slst January, 1766.
The title deeds were respectively dated :
2nd July. 1756, by Governor Tulbagh.
8th April, 1801. by Sir George Yonge.
9th February, i802, by Gen. Francis Dundas.
The Consistory have already sold a portion to
the Hnguenot Memorial Committee, appointed
by the Synod of the Dutch Reformed Church of
South Africa, for the purpose of erecting a
Memorial building thereon, for the use of Syno-
dical meetifigs and other objects.
They, the Consistory, have applied to the Regis-
trar of Deeds for his sanction, to allow them to
pass a free Deed of Transfer to the s«id
Huguenot Memorial Committee on behalf of the
Synod of the Dutch Reformed Church. He is
quite prepared to allow this transfer, and any
other of further sales to be passed, provided the
said consistory can obtain from the Honourable
the Commissioner of Crown Lands, a similar
letter to the one addressed to the Consistory on
the 12th April. 1878, with the proviso that there
shall be no restriction on the use of the proceeds,
and 'which letter is filed with the Registrar of
Deeds in connection with a sale of ground,
effected by the Dutch Reformed Church, granted
to them by Government for similar purposes as
the above grant on the 26th February, 1880.
The Consistory do hereby respectfully request
of you, that you will give your consent to the
transfer by the Registrar of said gronnd to the
Huguenot Memorial Committee, and other
transf^ of above-mentioned ground to other
pnrehasers. As- the Consistory have already [
provided a new oemeteiy at Mowbray, and
further provisions having been made by Govern-
ment for a general cemetery at Maitland, the^
request that the stipulation contained in the
above-mentioned letter of 12th April, 1876, be no
altered that the fund^ derived from these sales
may be used for church purposes, instead of
specially for the purpose of a cemetery.
The Consistory hereby undertake the respon-
sibility of satisfying parties holding plots
on the ground, either by burying the bones
deeper than they are now or by removing them
to Maitland as may be desired. Care will
however be taken that all bones shall be buried
four feet below the surface before any buildings
will be allowed to be erected.
The Consistory wish to bring to your notice
that since the closing of the cemetery in
Somerset-road in 1886 by Act of Parliament it
has ceased to be used as a burial place. Con-
sequently a considerable annual expenditure is
necessitated to keep it in order, as with a very
few exceptions nothing is done to it by the
relatives of those buried there. A few years
ago the Consistory expended no less than £900
in putting the cemetery in decent order, and
they very much fear that at no distant date
they will be obliged to expend a similar amount
upon vaults, walls and monuments, which are
rapidly falling into decay. We trust you will
as soon as it is convenient accede to oar
request, as the Synodical Committee of the
Huguenot Memorial are anxious to have the
building completed before the next session of
the Synodical Assembly, which has been fixed
for October, 1897, and therefore have no time to
lose.
To this the Secretary for Agriculture replied
on the 31st October, expressing regret that the
Government could not grant the consent asked
for, **the Governor having no power to alter the
terms of the grants under which land is held.'*
The Consistory were, however, advised to
petition the Supreme Court for leave to cell ;
and it was stated that '* the Government has
no objection to such application being made.*'
After further correspondence, the Government
addressed a letter to the Consistory to the follow-
ing ef^ectt on the 80th December, 1896 :
Mr. Faure, the Secretary for Agriculture, has
given careful consideration to the letter in ques-
tion (from the Consistory, dated 18th December),
and he thinks that the feeling of disappoint-
ment given expression to, is due not to anj
change of attitude on his part, but to the fact
which was stated in my letter of the 14th instant^
that the Consistory had undertaken the respon-
sibility of satisfying parties holding plots of
ground in that cemetery, and which he founid
the GoDsistoiy were unable to do, for he reoeived
objections to the proposed alienation from all
qDart.*rB.
With regard to the deputation which waited
open Mr, Faore, he desires me to say he con-
siders that anybody who has relations buried in
soy portion of the cemetery is interested in the
alienation of any portion ol it.
Mr. Faure does not think there is any neces-
sity to disclose the names of the deputation
ibrottgh whom the case of the objection was
represented, as it will be seen when the case
comes into court, whether the objectors have
iny interest in the ground or not.
The Consistory replied on the 6th January,
poinUng out that in the petition to the Supreme
Coort,the Consistory still adhered to the under-
taking contained in their letter of the 13th
September, and expressing surprise at the
Goreinment joining in the case in opposition to
tlie petition.
Mr. Innes, Q.C., applied to make the rule
abfiolnte.
Mr. Shell, Acting Attorney-General (with
Mm Mr. Bisaet), for the Government;
Before addressing myself to the legal question
inyolved in this case, I may briefly explain the
position which the Government has taken up in
this matter. When application was made by
the Consistory in thier letter of the iSth
September last for leave to sell the land, the
Secretary for Agriculture wrot« on the Slst
October, pointing out to the Consistory that the
GoTcrnorhad no power to alter the terms of tho
jnnt and that consequently the required con-
«nt could not be given, at the same time
Wffiwting that the Supreme Court might bo
approached and that the Government would
have no objection to such a course.
The Government was not then aware that an v
oppefition would be raised to the proposed
alienition, more especially bearing in mind the
Jtatement contained in the letter of the 13th
ft«ptemW, that the claims of all interested
^rties would be satisfied. Subsequently,
however, on the 10th December an influential
«€paUtion waited upon the Minister for Agri-
^m and offered strong opposition to the
Proposed sale.
Tlw MioiBter for Agriculture then wrote, on
Wie Uth December, to the Consistory pointing
«L!?^./° ^*^ ^^ **^® ^*^^°« opposition which
««te(l the Government could not consent to the
^ r^ '^*''- *"'^ P^Kested that Parliament
would be approached on the subject, when the
^TteA^ *^^ parties could Ijc heard and con-
Coming to the strictly legal question, the
Court will have to consider and decide two
points :
1st. Whether the land in question can be
alienated, and if that question is answered in
the affirmative, then the
2nd. Question arises as to what purposes the
money realised by the sale should be devoted.
It is a clear principle that a grant. like a will
or testament, will not be lightly interfered with
by the Court if the intention of the grantor be
clear. In other words, the Court will give elfect
to the intention of the parties.
If the grants in the present case are looked at
it will be found that they are perfectly clear in
their terms.
In the first grants dated 2nd July, 1756, the
land is granted to the deaconry as a burial place
or churchyard for the inhabitants of Cape
Town, and in;the second grant, dated 8th April,
1801, the land is granted to the Venerable
College of Churchwardens for the purpose of
enlai-ging the local cemetery, i.e., the cemetery
granted in 1755, so that both these grants stand
on the same footing. The land was granted for
the inhabitants of the Cape, not for the hemfit
of tmy particular denomlnatimi, but generally
for the burial of the inhabitants of the Cape.
The Deaconry in the one case, and the College
of Churchwardem in the other, are appointed
trustees of the land granted for the public of
Cape Town, and without the consent of the
public, or at least of the Crown, the land cannot
be sold.
The law is clear that the subject matter of
grants from the Crofvn can only bo devoted tp
the purposes expressed in the grant. Blacksto)ie
(Vol. II., p. 464).
Here the terms of the grants are clear, there
is no ambiguity, and the attempt which is now
being made to devote the subject matter of the
grants to other purposes cannot be authorised
by the Court.
But even if the laud were allowed to be sold,
the Consistory has no right to the uroceeds of
the sale. The land was impressed with a trust
for the benefit of the people of Cape Town, and
not merely for members of the D. R. Church,
and any money derived from the sal a of the
land, if it conld be authorised, must be devoted
to public purposes.
The grants were not for charitable purposes ;
if they had been, and the object of the charity
had failed, the Court might possibly apply a
doctrine somewhat similar to the cy-prii doc-
trine of the English law and devote the proceeds
of the sale to similar charities.
But no question of charity arises in this case,
the only persons beneficially entitled are the
io
public of Gape Town, for whose benefit tke pro-
ceedfi of the sale, if it is allowed, must be de-
voted.
A further point might be taken that the useb
for which the land was granted haviuK been
exhausted the land reverts to the Crown.
Mr. Schreiner, Q.G., argued for the respon-
dents : The consistory as holding under a trust
has interests in the burial ground, but only as
under a trust — but the public and the 112
allottees holding sub-titles have also rights.
Here we have a large number of titles granted
by the Consistory holding good as between the
Consistor}' and the grantees. No regiBtration it
is true has been affected, but the present appli-
cation is a complete disregard of that right
under these sub-titles, for the right has passed
out of the Consistory to the allottees, so far as
regards the plots granted thereunder. The
Consistory denies the rights under these sub-
titles, yet especially alleged in its affidaWts that
it claimed payments from the allottees in 1891
as owners of the allotments. The Consistory
has purported to sell the plots, the titles have
noj^ been registered, but though this might be
good as against third parties who buy without
knowledge, it is not required as regardc the
grantor, i,e* the Consistory. A jv4 in re was uot
passed, but hjut ad rent has passed, and we are
right in coming to protect such right now.
The old doctrine of non-alienability of such
property as this has ceased. Sec Cape 2bfi>n
DutricU Watei'war\» Co, v. Elders (8 Juta,
9); Va/n Leeunen (Commentaries, section 13,
Book II., Chapter I.) ; Gratint (2, 1, 37) ; Van
Leeufven (Roman-Dutch law 2, 1, 9); Digest
(11,7,89); Cod^(%,^\, 14); 6Vn<jtf (Restraints
on Alienation, page^ 114 and 122, Webbers
Translation) ; Voet (11, 7, 6). The rights of the
purchasers are not only those of future burial,
for of course as the cemetery has been closed,
this part of their right has ceased. Bat they
have the right to the due respect and veneration
of the bones of their ancestors and to the non-
disturbance thereof. Moreover, even if the
Consistory could sell, they could not use the
proceeds by putting them into the common
church funds. It is interesting to note that
Bureau-street was constituted out of a Dutch
Reformed grave yard, against the will of the
then consistory.
Mr. Innes, Q.C., for the Consistory: It is
interesting to see that out of the 112 plotholders
only five are now before the Court. What were
the legal rights of these allottees I Surely the
Oonsistory never parted with dominium but only
gave a sort of servitude, viz., of building vaults
and buiying. . . . But of the five plot
daimars only one actually bought land, ike
others represent in the second or third degree
previous plot buyers— as to whose disposition of.
their rights by will, &c., there is no evidence.
All that counsel for the objectors contends for,
is practically that the holders have a right that
the bones of their relations shall not be
desecrated. Elder's ease cited by him ahowa
that such land can be alienated, not desecrated.
Is this alienation to the Huguenot Memorial
Committee a desecration? The place has been
in a disgraceful condition, and there may be
desecration by omission as well as com mission*
Kvery thing at the cemetery was in a miserable
state, and two of these very objectors refused to
pay 15s. to make things seemly and orderly. If
we proceed to desecrate we can be stopped, but
the use to which the ground is to be put by the
Huguenot Memorial Committee is a de<sent,
seemly and orderly one. The Court has diacre-
tion.
The Chief Justice : Suppose one of the plot
owners wished to erect a handsome monument
as a memorial of an ancestor. Can you atop
him, for the Consistory has gone through every
stage to give dominiuni except registration 1
Or could you pull down a handsome vault
architecturally beautiful, if any such now exit^t 7
Mr. Innes : No, but the vaults are in a tumble-
down condition.
The Chief Justice : Then your action would
properly be one for a declaration of forfeiture
on the ground of failure to keep the ground in
proper condition.
Mr. Innes : Who could be sued : who would
luive the right ? But the real point is the dese-
cration. It is diiiicult to understand the position
of the Qovernment. We applied for their
consent, then the Government had no objection.
Now they have joined with the objectors.
The rule was discharged with costs.
De Yilliers, C. J. : I quite agree with the
applicant's counsel that it is a greater desecra-
tion of the dead to alio 7 their tombs to go to
rack and ruin, than to build over them a
memorial such as the one proposed. Some of
the tombs in the burial ground have certainly
been much neglected by the relatives of those
buried there, and it does surprise me that
persons who have taken so little interest in the
proper maintenance of these sepulchres, should
now object to the alienation of the land for the
purpose of building thereon the Huguenot
Memorial. The question, however, which the
Court has to deal with, is one of law and not of
sentiment. In the face of the objectiona raised
by purchasera this Court has, in my opinion, no
power to authorise the alienation of the land,
even for so praiseworthy an object as the
erection of a H uguenot Memorial. The forms of
11
Irftosferto the different allotteeei have been put
in. Income the power is given to the applicants
to declare forfeit the right to the land if the
vAults built thereon should be allowed to
become ruiooua, ))ut I iucline to the opinion
tnat this power can only bt- exerciFed with the
aid of a Court of law. There ia no application
in the preeent case for a forfeiture of any of the
allotments in this ground, because vaults erected
therein have become dilapidated. In the other
foruiR transfer of the land is unconditional,
and with the exception of registration in the
Deeds Office, everything has been done by the
Consistory to veet the ownership in the allottees.
It is true that the purpose for which the land is
transferred is stated to be the burial of the
dead, but that is the purpose stated in the
errant to the Consistor}' itself. In all the
transfers put in, it is stated that vaults will Ije
erected f jr the burial of the dead. These vaults
belong to the persons who built thena, or their
heirs. They have the right to place any
monuments there, and of this right they would
be deprived if the memorial buildings were
were now allowed to be erected on the ground.
The Court cannot sanction such an interference
with right-; solemnly transferred to indiviJualj}
for valuable consideration. The absence of
rejpstration in the Deeds Oilice does not nH<>igt
the applicants. If they had transferred the
land for value to a third party, who ha^ ro
notice of the prior sale and allotment to the
owners of the vaalt«, such third party would
have had a prior claim over the allottees. But
as between the Consistory and the allottees the
want of registration makes no difference.
There still remains the further difficulty that
the Government* the original grantor of the
land— objects to the proposed alienation. The
grant of the land was made for the definite
parp se of being used as a burial ground for
the inhabitants of Gape Town. Since the dat«
of the grant the Legislature has, by section 64
of Act 4 of 1883, authorised the Governor by
pablic notice to direct that burials shall be
discontinued in any cemetery, and to alter or
vary such notice. Under that section the burial
froQDd now in question has been closed, but it
would be competent for the Governor to order
it to be reopened for purposes of burial. Xt
would, at all events, not be inconsistent with
the obiects of the Act to permit the ashes of
cremated persons to be deposited in the vaults.
The heirs of the allottees of plots of ground
would be entitled to claim that in case, after
their death, their bodies should be cremated
their asues shall be deposited in such plots. I
refer to this point merely in order to show that
the fact of the burial ground having been
closed is not conclusive in the
favour. There is no proof of such
failure of the condition on which the
granted as to apply to this case the
that the burden of tideicommm^im is
guished upon failure of the condition on which
it was created (To/?/, 36, 1, 6)). The burial
ground is closed but it may at any time be
reopened by order of the Governor, and even if
it should not be fo reopened the heirs of the
allottees are still entitled to a modified use of
the land. It is imposf^ible, therefore, to hold
that the applicants can claim the right to
alienate the land for other purposes than bunal,
without the consent of the grantor by whom the
condition was imposed that it shall only be
used for purposes of burial. On every ground,
therefore, the rule granted in this case must be
discharged with costs.
Mr. Justice Buchanan concurred. He said :
Reduced to its barest form the principle
involved is this. This land was vested in the
Consistory of the Dutch Reformed Chnrch.
They have sold portions of this land and re-
ceived money for it. They now propose to re-sell
some of the property to other people, and take
more money for it. But the persons to whom
they first sold it come and object, and in view of
these objection 4 the Court cannot set the
rights of these people aside.
Mr. Justice Maasdorp concnrred.
[Applicants' Attorney, C. C. Silberbaner:
Attorneys for the Government, Messrs. Reid &
Nephew ; Respondents' Attorney, V. A. van der
Byl.]
SUPREME COURT.
[Before the Right Hon. Sir J. H. DB ViixiBRS,
K.C.M.G. (Chief Justice), Hon. Mr. Justice
Buchanan, and Hon. Mr. Justice Maas-
dorp.]
PIRIK V. PIRIK,
J 18»7.
{Jan. 13th.
Mr. Close moved to matte absolute the mle
nm admitting applicant to sne in farmd
pay per U by edictal citation in an action against
her husband for restitution of conjngal rights,
failing which for divorce, by reason of hia
malicious desertion.
Granted ; with leave to sue by edictal cita-
tion— intendlt (short form) and notice of trial
to be served with the citation^returaable May 1 ,
Same service m the rule nUi^
12
IX THB MATTER OF TKB 1IIN0B LIZAMOEB.
Mr. Tredgold moved for the sanction
of the Court to the Bub-divitiiou of
the arable lands of the farm WelgeruBt, in tlie
district of Oudtfihoorn, of portion of wliich the
minor owns a half -share, and for the appoint-
ment of Mr. Botha as curator to represent
the minor, and to sign all necessary documents
in connection with the partition of the pasture
lands.
Granted.
BURDACK V. BURDACK.
Mr. Jones moved to make absolute the
rule tiui for dissolution of the marriage
subsisting between the parties, by reason of
respondent's failure to obey the order requiring
him to restore her conjugal rights in his wife,
and for an order giving the custody of the
minor children to applicant.
Granted.
THB PBTITION OP FAMNT L. WOLSTONB,
Mr. Tredg«ld applied for extension of the
return day of the edictal citation about to
be issued In the suit instituted by peti-
tioner against her husband for restitution of
conjugal rights, failing which for divorce, and
for further directions as to the service of the
process, and for leave to have the trial heard at
the next Oudtshoorn Circuit Court.
Extension granted to first day of Oudtshoem
Circuit Court ; service to be by publication in
the Johannesbuig "Star.*'
THE PBTITION OF LILT HABRU.
Mr. Tredgold applied for leave to sue by
edictal citation in an action against her hus-
band for restitution of conjugal rights, failing
which for divorce, by reason of his malicious
desertion.
Order granted ; returnable on February 13.
IN THB MATTBB OF THB UNION BANK.
Mr. Hchreiner, Q.C., appeared to present the
eighth report of the official liquidators as
follows : The official liquidators beg to submit
to this Honourable Court their eighth report.
Since presenting their seventh leport, the
liquidators have been able to collect the re-
mainder of the amounts due in respect of those
debtors who had arranged with the sanction of
your Honourable Court to liquidate their en-
gagements by periodical payments. Some of
these have paid off their liabilities sooner than
was expected. There is one compromise now
before your Honourable Court, but as its
acceptance appears to be in the interests of the
bank, no opposition is expected when it cotn«a
before the Court for confirmation. The only
rejaaining assets are various life |)olicie8, claims
against debtors and contrilmtories, sundry gold-
mining shares, and miscellaneous securities, of
the value of whi«h it is hardly pof^sible to form
any reliable estimate. Little good, it is felt, ia
likely to result from holding the assets men-
tioned any longer, and under the circumstanoes,
with the ultimate object of finally cIoBin#c off
the affairs of the bank and bringing the liquida-
tion to an end, it is proposed to sell them by
public auction at an early date, and an oraer of
your Honourable Court authorising this course
is now desired. When these assets have been
realised, the liquidators will be able to file a final
report and account.— Dated at Cape Town,
December 16, 1896.— G. W. Steytler (secretary
Colonial Orphan Chamber and Trust Company)
and Henry Gibson (secretary South African
▲siociation), ofiicial liquidators.
The usual order was made.
LOUWBBNB AND OTHBBB V. POTOIETBR AND
OTHERS.
For extension of the return day
of the edictol citotion until February
22 about to be issued in the suit
instituted by applicants against i-espondenta for
a declaration of rights, and for the recovery of
damages in respect of certain water rights on
the Buffels River, in the district of Oudtshooru.
Mr. Bohreiner, Q.C.and Mr. Graham appearsd
for the applicants.
The extension was granted.
IN THK IHSOLVBNT E0TATB OF TBENGOVB AND
J0X7BBBT.
Mr. Graham applied for the appoint-
ment of Messrs. A. W. Spilhaus and
P. J. de Villiers as provisional trustees
of the said estate, with power to sell
the assets and goods, being the commodities of
a general dealer, and carry en the business
pending the election of a permanent trustee or
trustees.
Application granted.
INCOBPOBATBD LAW SOCIBTY V.
LLOYD.
1897.
Jan. l.Hth.
Feb. 2nd.
Attorney — Professional misconduct —
Th eft — Suspension .
L.^ av attontPi/^ havhig heeti cnnvirUul of
the theft of £4^ traHy on the applhaiioit
13
'/ the Latr Society, nuspevdeil from
jmirfivr for a period of six months,
with If ace to him after the expirntion
of that time to petition th* Cowf
to be reAmtaied^ notice of th*^ opj/Iioi-
tion to he gicett iu the Lav !Sitciety.
This was an application for an order Ktrikiug
off ibe respondent's name from the roll of
attorneys of the Supreme Court by reason of
his professional misconduct, in that he was,
on the 3rd November last, conyioted before the
Beaident Magistrate for Graham's Town on a
charge of theft, of M by means of embezzle-
ment, and was sentenced to pay a fine of £10, or
in default to undergo six weeks' imprisonment.
Mr. Searle, Q.C., moved.
Mr. Joubert, for the respondent, applied for a
postponement until the ist February, on the
grounds of the respondent's illnees, and put in
from the bar an affidavit to that effect.
The Court expressed some doubt as to whether
the affidavit should be received, as it had not
Iwen filed with the Registrar by the respon-
dent's attorney on the preceding day in
accordance with practice.
Eventually the Court admitted the affidavit
and granted the postponement.
Poftea (February 2nd), after argument,
The Chief Justice said : The explanation is
given by Mr. Joubert in regard to the respondent
that this attorney, being in a state of
poverty and requiring money to pay his land-
lady, yielded to a temptation to appropriate
some of his client's money, and that when after-
wards his client asked him for the money he
told him that he had only received £4, whereas
as a matter of fact he had received m. He did
this in a moment of temptation, and in the state
of poverty in which he then was. Of course
this is no excuse for any person committing
theft, especially an attorney, but at the same
time I do not think that the Court ought to
visit this man with an exemplary punishment.
Th© Court will suspend him until a further
order is made, with leave to him to apply
atrain in six months, and after due notice to
the Law Society; the costs to be paid by the
respondent.
CApplicants' Attorneys, Messrs. Van Zyl k
Buiesinn^ ; Re pondent's Attorney, C. Herold.]
RBGINA V. M ARABS. \ r ^^^Jk.^
/Jan. 13th.
Evidence — Suspicion — Conviction .
Where a Magistrate hadconricted M.
ujxm eridenee which raited a strong
cafte of suspicion against him but
irhieh failed to di recti g connect him
irit/i the offence charged^ the Cmirt on
ffpjnal quashed the ronrietion.
This was an appeal from a sentence passed
upon the appellant by the Resident Magistrate,
Caledon, in a case in which the accused, D. W.
Marain, was charged with malicious deetruc-
tion of property in destroying a bluegum tree
growing at the side of hie property in Deinpers-
street, by barking the tree, which was the
property of the Caledon Municipality,
The Resident Magistrate convicted the
accused and fined him £5 or fourteen days'
imprisonment.
Against this conviction the appeal was now
brought.
From the evidence in the case before the
Resident Magistrate, it appeared that the
accused asked permission to cut down the tree
in question, but the Council refused to accede.
The Resident Magistrate in his reasons stat-ed
that though the case rested entirely on circum-
stantial evidence, it was clearly proved that the
accused was the guilty party because of the
application to be allowed to cut the tree down,
and because the bark of the tree was traced to
the yard, and that the accused's servant refused
to give the bark up to the strcetkeeper on the
ground that she would get into trouble, and
because the bark wan burnt by a child, an
inmate of the house of accused. Moreover, the
prisoner gave his evidence in a very uasatisf ac-
tor}* manner.
The servants referred to were not called,
though hearsay evidence of what they were
alleged to have said was given.
Mr. Searle, Q.C., appeared for the appellant.
Mr. Sheil, Acting Attorney -General, for the
Crown.
The Court allowed the appeal.
The Chief Justice said : The utmost that can
be said on l)ehalf of the prosecution is that the
evidence raises a case of suspicion against the
aecused. Mr. Sheil argues now that there are
two circumstances which tend to show that the
accused was guilty ; first, that a piece of bark
of a bluegumtree was found in the yard of the
accused, and secondly, the unsatisfactory
nature of the evidence given by the accused.
No attempt was made to fit in the bark, and
see whether it belonged to the tree in question.
It was said that a girl took it away, which
would rather tend to raise suspicion against
the girl, and not against the accused. Then
as to the unsatisfactory manner in which the
accused gave his evidence, we have the evidence
14
before ur, and unlera there wan Romething in
his demeanour wliich the Magistratf considered
unsatlBfaotory, the evidence itttelf BeeinR sati^s-
faatory. I aro afraid that the MaKiBtrafce was
mainly influenced by the hearsay evidence. 1 he
girl made certain statementR to one witiieBB,
and without those Btntement« I am Hatisfied tliat
the Mag1itrat« would not have found the
aocueed guilty. I underRtand that the girl wae
subpoenaed but not called. Well, the ouur of
proving the guilt lay upon the proRec-ution, and
having failed to prove that guilt, the Court
must quash the conviction.
Their lordships concurred.
[Appellant's Attorney, Paul de VillierR ]
) 1HQ7
BARTHOLOMBW V. BTABLEFOBD. j jn^ ]3^|j
Provisional sentence — Consideration —
Restraint of trade.
Prorhiowd nefitoirr ffjYntfed upon a
promt Mr rofitaine/J /// rnt agref mtntt to
jxiy a certain «nm^ although paii of
ilie ron9i(lt>ration for Hurh prominfi
iras (I rfhane by the proiuisee of tJit-
promisor from a previous^ ohligatiou
impoMivq upon the latter a jMirtml
reatrahit of trade.
This was an application for provisional
senteooe on a certain agreement or acknowledg-
ment of debt for £100, with intei*e8t from
22nd April, 1896.
Th« document on whtoh provisional sentence
was claimed was one signed by plaintiff and
defendant, which set forth that defendant owed
£78 2b. 9d. on advauces made by plaintiff on
security of certain furniture; that defendant
had undertaken for various oonBiderations not
to be concerned directly or indirectly, in any
capacity, in selling typewriting machines or
acoe?Bories in the United Kingdom or South
Africa (except with the Yost Company) or to
take part in any school of shorthand or type-
writing in Cape Town, Durban or Johannesburg,
without the consent of plaintiff, under a
penalty of £u'.10 ; that plaintiff releascR defen-
dant from the latter restriction.
Further the document stated t^at defendant
was indebted to plaintiff in respect of certain
matters arising out of the management by the
defendant of the plaintiff's business in respect
of which the plaintiff had agreed to release
defendant to the extent of claims which had
coQie to plaintiff's knowledge.
The document proceeded : Therefore the said
parties <lo hereby, eon tract, nnd agree with eacli
other ill manner following:
1. It is agreed that the paid Bartholomew
shall remain in Mndisturbvd possession of the
aforesaid furniture until the 31st day of March
next, whether bfllance due in respect thereof he
paid before that <Iate or not. the said Bartholo-
mew paying in advanre to the said Staldefon!
the rent for the said period which the faiil
Stahleford hereby noknowle<lgis to have
leceived.
2. The said Bartholomew hereby releases the
said Stahleford from such portion of tlie snicl
recite<l agreements as prohibits him from
being engaged or occupied, either directly or
indirect I}', in any capacity whatever in or
connected with any person or firm except the
'* Yost Typewriter Company (Limited) " dealing
in or selling typewriting machines or any like
contrivance within Great Britain and Ireland
or South Africa, or taking part in any school
of typewriting in Cape Town, Durban or
Johannesburg, without ftist obtaining the
written permission of the said Bartholomew.
It is further understood and agree<l tiiat the
release hereby given shall not t)c taken to
cancel or affect any other portion of the Raid
recited agreements otherwise than to the
extent of releasing the said Stablefoni in
respect of certain of the restrictiouR in the
third condition of the said agreement of the
1st day of May, 189.\
8. In consideration of the premises the said
Stahleford hereby undertakes and promises to
pay to the said Bartholomew the sum of £100.
in security whereof the said Bartholomew
agrees to accept a certain promissorj' note for
£100 dated the 22nd of April, 1895, signed Ly
one Alfred Cadman to and in favour of the
said William Stahleford, or order, and falling
due on the 22nd April, ]89().
4. On payment of the said sum of £100 the
said Bartholomew agrees to credit £50 thereof
t« the said Stahleford on account of his indeltted-
ness in respect of the said sum of £78 26. 9d.,
and the balance of £o) to the credit of the sum
of £100 to be paid as aforesaid.
6. The said Stahleford agrees to execute and
deliver to the said Bartholomew in payment of
the balance of the said sum of £100 two
promissory notes in his favour, each for the
sum of £25, falling due at nine months and
twelve months respectively from the date
hereof.
6. The said Benjamin Bartholomew hereby
discharges the said Stahleford in respect of all
other transactions between them in eofar as the
same have been disclosed by the said Stahleford,
15
»teiigiui(lerBtood and agreed further that thia
•ttlemeit doe« aot affect or prejudice any claim
otttwsaid BartHolomew, in respect of such
Mtten as have not been diecloeed to him or
^rooghttohis notice Ijy the said Stableford.
7. TbftbalHnee remaining du*3 on the debt for
wbich the aaid f urnitnre is pledged, namely,
£ffi2B.9d., vhe said Stableford agreee to pay on
the3l8td»yof Marc^, J 896.
8. Should the said Stableford make defaults
IB paymenU oi any of the promissory notes, or
debts as bereiabef ore set forth, or should he and
tht aid Alfred Cadman both fail to meet the
»i.l InVl lor i£lOJ within fourteen days after
maturity, the said Bartholomew shall be entitled
to pot into force the conditions of the said
agreement of the 23rd February, 1896.
9. The acceptance of the "aid Bartholomew of
the said draft for £1U0, shall not be taken to be
a novation of this claim against the said Stable-
ford, or prejudice him or postpone his rights
cftberwiae, than is in this agree tuent expressly
let forth.
i<X The costs of the said Bartholomew, in and
alKMit this agreement and of the aforesaid
supplementary agreement, shall be paid by the
■aid parties in equal shares.
(Sgd.) B. Babtholombw.
„ W. Stableford.
This document was dated l!Hh October, 1895.
In opposing the application for provisional
sentence on the above document the defendant
<di the following affidavit : —
1. That I have perused the summons and
annexures served upon my agent in the above
matter.
2. That I deny that there U due by me to the
l^laintiff the sum of £100, as stated in his sum-
mon.^ dated 2 1st November, 1896.
-3. That at the time I entered into the ser-
Tioe of the plaintiff I was a minor of the age of
ift years, which fact was well known to the
I»laliitifC
4. That the sum of £1(X), claimed under the
a^raement of the 19th October, 1896, was
obtained from me by the plaintiff under pres-
eore and threats of a criminal prosecution if 1
<lid not agree to the payment of the sum of
£100.
5. That the several agreements entered into
betw^een plaintiff and myself and referred to by
him in the summons and annexure are void and
of no effect^ as the same were cancelled by my
having left his employ in consequence of my
diioovering that the plaintiff was systematically
defrauding Her Majesty's Customs in his busi-
nees transactions, and to which I would not be
a party, of whioli i'^^'t I duly apprised the
IkJaJDtiff at the time.
6. That 1 do not owe any money to the
plaintiff on any furniture account,! having paid
through my agent the balance due thereon and
amounting to £36 lis. 9d. during the month of
November, 1896.
7. That I am quite prepared to defend any
action the plaintiff may bring in connection
with the amount now claimed, and have to ask
that this Honourable Court may refuse provi-
sional sentence with costs, leaving the plaintiff
to bring his action in the usual way, so that I
may be prepared to bring evidence in support
of the allegations herein contained.
Mr. Tredgold moved.
Mr. McGregor for the defendant: The docu-
ment now sued on is not u liquid document,
it was not drawn in a form on which pro-
visional sentence should be given. The appli-
cation goes far lieyond anything hitherto
decided. But even if this is not held to be so by
the Court yet the consideration is also defective.
There must be, in a document on which pro-
visional sentence is claimed an unqualified
admission of liability. But it is clear from
the document that only if those promissory
notes are not paid does the present docu-
ment sued on become payable : there is
a specific moae of payment of the original
liability provided for, via., by the hand-
ing over of the notes. Have they been handed
over : have they been paid i
The Chief Justice: But there is a clause pro-
viding that the giving of those notes shall be no
novation of the claim based on this document.
That leaves the claim unconditional.
Mr. McGregor. See Green v. Jieveridge (8
Juta, 45), which sho^s that Wessels Sc Waal
(8 Juta. 123) would not govern a case like
this. In any case the consideration is illegal,
coni<isting as it doesinthereleasefrom an agree-
ment operating as a reetraiut of trade. For
even if the time is short the prohibition, if
unreasonable in point of area, will remain
illegal : and the limit of area here is unreason-
able. See Ma»t'hii yordetifeldt (Jun Company
^.yordcnfeldt (L.U., Cb.D., 1893, page 630).
Besides, the defendant sweara there was duress :
or at least that plaintiff by his own story
hushed up the prosecution for the sake of this
doc^unent.
Mr. Tredgold for the plaintiff (the Court
intimated that it would not liearhim as to liqui-
dity, being satisfied that the document was
liquid) : The Maxim ca^e was one of a general
indefinite prohibition. But see Leath^' Cloth
Company y» LorsutU (9 Eq. Cases, 345); MotitiUon
V. IlmmUan (14 Ch. D., 351). In the pref en tease
the restraint of trade is a very mild and reason*
able one. The adequacy of a consideration will
16
not be too nicely tcrutinised. The idea of a
criminal prosecution was abandoned bIx months
before the document was sisrned.
De Villiers, C. J. The first objection is that
this is not a case for provisional sentence, inas-
much as there is no unconditional promise to
pay. The agreement says: '*En consideration
of the premises the eaid Stableford (the defen-
dant) unde-takes and promises to pay the said
Bartholomew the sum of £IC0." The premises
refer to a good many transactions covering
several jears and ending in wbat was virtually
a compromise between the parties. The promise
to pay the £100 is unconditional and the first
objection falls to the ground. Another objection
is that part of the consideration for the promise
is the release of the promisor from an obliga-
tion not to carry on a particular business for a
certain time and within a certain area. Such
an obligation, it is urged, is invalid as being in
restraint of trade, and therefore a release from
such an oblication does not constitute a consi-
deration at all. Without inquiring whether the
English cases cited as to rentraint of trade are
applicable to this colony at all, I am satisfied
that even in England such a limited restraint as
was imposed in the present case would not be
regarded as invalid. The release from the
restraint was a perfectly valid consideratioo,and
provisional sentence must therefore be granted,
with a stay of execution for one month.
Their lordships concurred.
[Plaintiff^s Attorneys, Messrs. Fairbridge,
Ardeme Sc Lawton ; Defendant's Attorney, D.
Tenuant, jun.]
SUPREME COURT.
[Before the Right Hon. Sir Hbnby pb Vil-
liers, K.C.M.G. (Chief Justice), the Hon.
Mr. Justice Buchanan, and the Hon. Mr.
Justice Maasdobp.]
BYTNBB V. COHBN.— 7ief COHBN V. f 1897.
BYTNBB. (Jan. 22nd.
Minor — Emancipation — Pnblic Trade —
Writ of arrest — Discbarge — Fraud
— Material allegation — Failure to
answer— Rule 135 — Summons.
S.,a minor, carried on huaiiiesHfor six
weeks in 1S[)5, on his own aciumnt,
and thereafter returned to his
father^s custody.
On fheJSth December, lS9fi^ H, signed
a promissory note for £50 in favour
of C, to mature on April ISth^ 1897.
In Jan., JS97j hoivever, C prwured
the arrest of S. (when about to leave
for Balawayo) ujwn an affidavit to
which was annexed the above-men-
tioned note, together with another
docnmrnf {aiso dated ISth December^
I !<9fi)^ purporting to be an agreement
by S. to pay the debt in instalments of
.4lJ a week, the w.hole amount to fall
due on default in payment of any onf
instalment. V. alleged such default
in payment. *S\, however, alleged on
affidarit that thottgh he had signed
two documents, the later one was
signed on January 15th ^ on C's re-
presentation that the promissory note
was lost, and that thitt document con-
tained no condition as to the amount
fulling due on defiult in payment nf
an instalment. These statements were
not denied by C. in his replying affi-
davits.
On application by S., the Court dis-
charged the tcrit of arrest us in con-
sequence of C's failure to answer the
material allegations ^ the Court was
not satisfied that the debt was due ojs
alleged: but {on C\v application)
authorised that the writ should stand
(IS a summons.
This wa8 an application (anticipatinfic the
return day) by Albert Kytner, under Rule 135*
for the setting aside of a writ of arrest retnm-
able on February I. The defendant was prei«ent
in custody.
The writ was granted on the followiag affi-
davit by plaintiff, dated 16th January, 1897 :
1. On the 18th day of December, 1896. Sytner
signed a promissory note in my favour for the
sum of fifty pounds sterling, payable on
the 18th day of April, 1897: hereunto annexed
marked A.
2. That on the name day he also signed an
agreement hereunto annexed marked B, by
which he undertook to pa}' the said note in
instalments of £3 per week, failing which pay-
ments the whole amount of the said note should
become due and payable at once.
1?
3b Syiaer h^» paid two iasialmeutfi in accor-
daoce with such agreement, the last of such
liSTmeots being made on the 4th day of Januans
1S97, sinoe when he ha"* paid nothing.
1 That I have been informed by defendant
sod also by his father, and I verily believe that
heiitleavingthitt colony within the next three
or four days for Bulawayo, Hhodesia, where he
intends taking up a permanent situation.
5. That as far as I am aware the said Sytner
V Doi possessed of any landed property in this
ooiooy.
6. That I have no mortgage, pledge, or other
wcarity, for the said amount as aforesaid, or
Boy part thereof, and that such amount of £44
remains therefore wholly un* ecured to me.
Annexore A, referred to in the affidavit, was
as follows :
l>iie 18th April. 1 897.
£oO
18th December, 1896.
Four months after date, I promine to pay C.
Coiien, Esq., or order at the Bank of Africa,
wspe Town, the Bum of tifty pounds sterling for
vsliie received.
(Sgd.) AUBISBT KyXNKB.
Annczure B was as follows :
I promise to pay Mr. C. Cohen the sum of £3
per week, on account of promissory note for £60,
payable na the 18th day of April, 1897, at the
Bank of Africa, Cape Town, till full amount is
paid, and should one i>ayment ije missed the
whole amount falls due at once.
(8gd.) AlBKRT iSYTKSB.
iHUi December, 18%.
The defendant filed the following answering
affidavit :—
t I admit paragraph 1 of the plaintilf' s afii-
^rit> but say, that at the time of signing the
promissory not« referred to therein, I was a
minor, of the age of 20 years, as will more fully
appear by the notarial copy of my register of
birth, hereunto annexed.
3 That I have no occupation, and reside
with my parents, and assist my father in his
hotel business, known as the Palmeraton Hotel,
Pleinstreet, Cape Town. That my parents
nipply me with Ijoard and lodging and clothing.
4. That with regard to paragraph 2 of plain-
tiff's affidavit, I say that the agreement entered
into with regard to the weekly payments of
iostflments of three pouad» sterling was not
npied by me on the 18th day of December, 1896,
but I sii^oed a document that was undated, on
FriJay the loth day of January. 1897, and that
if the said document B referred to in plaintiff's
atfidavit is now dattd. such date must have been
•ffixod after my sigaature was affixed thereto,
uid without my knowledge or consent. The
D
copy of the document B, served upon me with
the copy of the writ of arrest, has no date affixed
theret'*, but only the figures 18th.
5. That 1 have paid the said plaintiff the stun
of £9 in three instalments of £3 each par wpek,
upon a previous agreement dated 18th Decem-
ber, 1896, which said agreement did not contain
a clause to the effect that upon failure of pay-
ment of any instalments, the whole amount
should become due and payable at once.
6. That the said plaintiff, on the 15th day
of January, 1897, called upon deponent, and
stated that he had lost or mislaid the docu-
ment referred lo by me in paragraph 5 of this
my affidavit, and requested me to sign another
document, which plaintiff has refeiTed to in his
affidavit as document B, and which has been
wrongly dated as the 18th December, 1896.
7. That with regard to paragraph 3 in
plaintiff's affidavit I say, that I paid plaintiff
the sum of £3 on Wednesday, 13th January,
1897, making £9 in all that I paid him.
8. That the next instalment of £3 would
have become due and payable on Monday, I8th
January, 1897; the payment made by me on
Wednesday the 13th January, 1897, became due
and payable on Monday, 11th January, 1897,
which 1 paid to plaintiff, who accepted the
money on 13th January, 1897, as aforesaid.
9. I say again that 1 am still a minor and
have never been emancipated, and at the time
I was arrested at the imtance of the plaintiff I
did not owe the said plaintiff any money or
instalments due under the written agreement
referred to by me in paragraphs 4 and 6 of this
my affidavit.
Plaintiff in a replying affidavit re-asserted
that defendant had, as inducement to lend the
money, told plaintiff that he had an interest in
his father's hotel (the Palmerston), otherwise
he would not have lent the money. He
admitted defendant was under 21 years of age,
but stated that defendant in 1896 carried on
business with one Jacobs as advertising agents
and brokers.
There was an affidavit by Cohen's manager,
corroborating the allegation that 8ytner stated
that he was interested in the hotel ; and one by
Louis Sytner, owner of the hotel, denying that
defendant, his son, ever was interested therein.
Mr. Searle, Q.C., for the applicant: This is an
application under the 135th Rule of Court by
Sytner to anticipate the return day of a writ of
arrest. It is admitted that the applicant is a
minor ; and unless his case falls under one of
the legal exceptions, he cannot be sued — still
less be arrested— without a guardian acting in
the case. ( Vbei, 5, 1, 11 and 2, 4, 36.) Among
the exceptions recognised are emancipation of
18
s minor (#.^., by carrying on a public trade or
profession) — or his representing him&elf t-o be
of full age— or emancipated. Apparently
plaintiff reliets oq 8ytner*B being emancipated.
But the only evidence as to this is that in 1895
Hytner carried on business for six weeks away
from his father — also that the minor repre-
sented that he had on interest in his father's
hotel business. The father denies that he had
any interest or that Cohen could have thought so.
Mr. Justice Maasdorp: If he was emanci-
pated in 1895, would he lose the legal position so
acquired by coming back to his father 7
Mr. 8earle: He clearly is not carrying on
buiinees now on hi* own account. And if he has
come back to his father he cannot be said to be
now emancipated. Caimcrotsy. F^x (Buchanan,
1876, page 6.) The authorities do indeed show
that if he represeats himself as of age he is
liable ; but this is not alleged here.
The Chief Justice : But if he represents him-
self as having an interest in the business is not
the principle the same, viz., the liability for
the fraud ?
Mr. Bearle : No authoriti**s go so far as that.
Moreover, did Cohen believe it ? He carefully
avoids telling the father of the promissory note.
The •ircumstances as to the signing the last
document arn suspicious. On the previous
documents he could not have been sued; but
then he was induced to sign the last document
which enabled Cohen to arrest him — which he
did at once.
The Chief Justice: There are two material
allegations in 8ytner's affidavit which are not
denied at all in Cohen's affidavit.
Mr. McGregor for the respondent : Cohen is in
court and can give evidence on these points. As
to Sytner's position —there was clearly emanci-
Vation. The carrying on of the adver ising
business with Jacobs effected the emancipation,
and once there was emaucipation a new status
was acquired a jd can not be revoked. Of course
the mere fact of carrying om such a busini'su is
not enough : there must be a reai*onable time for
the acquisition of such new status— 0.^., such
a time that business men could make a mental
note that the minor was carrying on business.
( Voet 4, 4, 48.)
The Chief Justice said : The applicant in this
case applies now for discharge from arrest under
the 186th Rule of Coutt. The arrest was made
upon two documents, one of them being a pro-
mlBSory note, payable four months after date,
and made on December 18, 189(S, for £50. This
promisaory note will not become payable until
April 18 next, and if, therefore, this were the
only document sued upon the plaintiff would
have no right to arrest the defendant. It was
therefore of great importance for the plaintiff
to show that he had some other document under
which the defendant would be immediately
liable, and accordingly this document was pro-
duced : "I promise to pay £3 per week on ac-
count of promissory note for £50 payable ou the
18th April, 1897, at the Bank of Africa, Cape
Town, till the full an ount is paid, and should
one payment be missed the whole amount falls
due at once." This document is dated 18th
December, 1-96, but the words " 18th December,
181)6," were apparently written by somebody
else and not by the p raon who wrote the body
of the note. It is written with a
different ink, and apparently on another day.
The defendant himself says that a document
was signed by him on January 15, and he was
then informed by the plaintiff that the docu-
ment which had been given him on December
18 was lost, and that in the document he then
signed the. words *' and if one payment be naisied
the whole amount falls due at onoe " had been
omitted. That affidavit was made on January
19, 1897. On January 22 the plaintiff made an
affidavit, and he says not one word aboai this
most important statement made by the
defendant in his affidavit. Now counsel pro-
poses, on behalf of the plaintiff, to call him as
a witness. I think it is too late. Me had
ample opportunity to answer this most
material statement, and he has omitteo to do
BO. The liberty of the subject is at stake, and
it is not the habit of the Court under circum-
stances like the present to give further facilities
to a plaintiff of denying statements made by
the defendant. I think on that ground alone
the defendant ought to be discharged. There is
no proof that there is a rebuttal of the etnte-
ment that no debt was due. It becomea un-
necessary therefore to consider whether there
is further proof of emancipation, but the
evidence on the point is extremely slight It is
said that for six weeks the defendant had
carried on the business oC an advertising agent
and broker. Well, Mr. McGregor is bound to
admit that the mere fact that he has carriea on
such a business would not be sufficient to eman-
cipate him. Supposing he had been empioyed
for a day that would certainly not be sufficient
to emancipate bim. Sytner wps only employed
for six weeks. The Court should be very careful
to require full proof of emancipation before it
holds that there has been such emancipation,
and I am not prepared to say in this case that
the proof has been sufficient. But, in the
absence of proof that any debt is due, I think
that the application for the diioharge from
arrest ought to be gi-anted with coatp, the writ
to stand as a summons in any freah case.
19
Mr. Joitiee Bucbant%u eoQCurred. He wished
tDDfation that the Registrar was perfectly
iptiiied under the ciroumftanceB iu issuiog the
writ.
M .Jwtioe Maaadorp concurred.
[Plaintiri attorney. A. Steer ; Dcfendant'B
Attfiney, D. Tennant« jun.]
SUPREME COUPvT.
1 Befwe the Right Hon. Sir J. H. DK ViLLlERS,
K.C.M.G. (Chief Jnnticf), Hon. Mr. Justice
BCCHASAN, and Hon. Mr. Justice .\rAAB-
ADMI88ION.
« 1897.
i Feb. iKt.
On the application of Mr. BeDJainio, Mr.
ArihnT Plantag<'net Keneal)' was R(linitte«l as
aa attorney ami notary.
PROVISIONAL ROLL.
arooniBAD, plant and cx). v. pbdkrbbn and
ANOTHKB.
Mr. Cloee applied for provieiooal penteooe for
£S3 lAi. on a promiFsory note.
Granted.
8TANDABD BANK T. FLANDBRfl.
Mr. Innes, Q.G.« applied for provisional sen-
on a bill of exchange for illOO.
Oraated.
ILLIQTUD ROLL.
BRHABILTTATION.
On the application of Mr. Koos, the rehabili-
totioo of Daniel Johnnnes de Villierp w^b
GKNERAL MOTIONS.
BBHR y. H ABM AN.
Mr. Jones applied for judgment under the ,
319th Rnle of d nrt, in terms of the declaratioD,
for transfer of certain land in Cape Town.
Granted.
ORB V. SCOWRN.
Application by defendant for leave lo sign
judgment agaiost plaintiff for not prooeod-
iog with his action against defendant withiu the
time prescribed l>y the rules of Court.
Mr. Puchanan appeand for the applieaut.
Order granted.
IN THE MATTER OP THR PETITION OF AMY
HTTTTON, BOBN WILLIAMS.
Deed of Transfer— Amendment Sub-
stitution of *' in community " for
" without community."
The petitioner was marrieci in couiiiuinity c»f
property to, and was assisted as far an ueed be
by, Edward Hutton. hrr hui^bnnd.
Mr. Searle, Q.C., applied for authority to the
Registrar of Dee<l»i to nctify the deed of transfer
|iat»8edin favour of (letitioner on 18th Nov., 18{I6
by sulw'tituting the word "in" iMjfore "com-
inunity " in lieu of the word " without."
Ord r granted, su»«j«ct to production of patis-
factory proof from Nital that the paitiis are
married in eonnnuiiity of property.
MARNKWICKK V. SOUTH AFRICAN MniFAL LIFK
AA>URANCE SOCIETY OF CAPE TOWN.
Mr. Graham applied 'or the rule nhi
to be made al)>oIute to sue in fonnu pmiiteih
in an action for the recovery of the amount of
the life policy of applicart's wife, who died on
2Srd May last.
Application granted.
Mr. Graham ap|>ointed couupel ; Mr. P. M.
Brink to be the attorney.
GROBBBLAAU V. OOUS.
Mr. Buchanan applied fortheexteupion of the
return day of citation to May 1.
Granted.
IN THE MATTER OP THE PETITION OF KMTLR
HENRY VAN NOORDRN.
Mr. Trtdgold applied for anthority to the
Registrar of Deeds to isnue to |->etitioner a certi-
fied copy of a mortgage Ix.n ■ in his favour | anped
on 29th February, 1896, by John Go<«dison. the
original having been lost
Rule ;*/*•• granted, returnable la^^t day of
term.
IN THE MATTER OF BREDLE AND CO., IIMITED,
IN LIQUIDATION.
Mr. Buchanan pi*»sent^d the second and final
report of liquidators.
XJsual order granted.
20
IN THE ESTATE OF THE LATE ROBLOF JACOBUB
DU FLBB8IS.
Mr. Uraliai)) applied for authority to
the executor dative to sell certaiu one-
twelfth share or part of the farm De
DooroB, the only rem>«iniD|{ asset in the
eatate, and to apply the proceeds in paying
the costs of administration ; any lialance shown
in the account to be framed to Le for the l»enetit
of the eleven heirs of the said Du PlessiH.
Referred to the Master of the Supreme ('ourt
for rejwrt.
UNION BANK, IN LIQUIDATION.
Mr. Hchreiner, Q.C., appeared to present the
eighth report for confinuatioD, and for the
sanction of a certain compromiBe.
Heport confirmed and compromise sanctioned.
IN THE MATTkB OF M066 HABBIS, AN ALLEGED
LUNATIC.
Mr. McGregor applied for appointment of
a evraiir ad littm in proceedings to be taken
to have the said Harris declared of umound
mind and for the appointment of a curator of
his person and property.
Granted. Mr. Hoos appointed curator ad
litem.
MAfiTBR T. HAYUAN'S TRUBTEE.
Mr. Shell (Acting Attomey-General) applied
for an order compelling respondent to file
certain dividend receipts.
Order granted.
AITCHIfiON V. AITGHISON.
Mr. Benjamin applied to make abFohite the
rule nUi for divorce.
Personal service had been made on the de-
fendant, William Faure Aitchison. The rule
was made al)Solute, with costs.
BBGINA V. SOLDAAT.
Mr. Shell (Acting Attorney-General) applied
for removal of the place of trial to the Circuit
Court lit Uitenbage.
Order granted.
BBOOKS V. BBOOKS.
This was an action for restitution of conjugal
rights, failing which for divorce.
Mr. Jones appeared for the plaintiff.
Mr. Barry, clerk in the Colonial Office, pro-
duced the marriage regipter of the parties, dated
Pecember 6, 1883,
Mrs. Brooks (born Lidcote). the plaintiff, aaid
that she was married to the defendant in tHe
Wenleyan Church. King William *s Town, and
lived in that town for nine monthe< Uer
husband was a clothier. They went to Queen 'm
Town, where his business was, and there th^jr
stayed eight^een months very happily. H ie
business was then closed up, and he was out of
employment for some time. They wanderect
about for several years, her husband only givioK
her very little support, her family practically-
Bup])orting her. In J 892 on returning from
Mount Frere to Kiug William's Town she took
a lK)arding-hoUBe, and then in 1893 her husband
went to Bechuanaland to seek employment. He
refused to return, * nd wrote admitting miscon-
duct in the early years of marriage. The four
children were aged twelve, eleven, nine, and aix
years respectively, the eldest and youngest liein^
girls.
A decree of restitution of conjugal rights w&s
granted, defendant to return to plaintiff on or
before February 28, failing which defendant to
be called upon to show cause why a decree of
divon e should not be given against him. and
the plaintiff be entitled to tne custody of the
children
f Plaintiff 'k Atto.ueys, MeB^rs. Findlay «&
Tait.]
HAWOBTH V. HAWOBTH.
This was an action for divorce on the ground
of a uUery, or iu the alternative for a decree of
judicial separation on the ground of cruelty.
Mr. Innes, Q.C. (with^^^ Mr. M askew), for
the plaintiff.
Mr. Searle, Q.C. (with him Mr. Benjamin), for
the defendant.
Mr. Searle, Q.C, said that after consultation
with defendant he would withdraw the denial
pleade i to the charge of adultery.
Mrs. Olivier, married to Cornelius Olivier,
said that her husband was defendant's overseer,
and lived on his farm for some time, and she
went there in May, 1894, and stayed until June,
1896. They at first lived in a tent and then in a
room which was part of Haworth's house. Up
to May, 1895, there had been nothing improper
between herself and defendant. Then one
evening he sent to say that he wonld
come and speak to her about her
troubles, she having just lost a baby. Her
husbamd was then away on a three days* journey
to fetch some poles. She was writing when he
came, about 8.30 p.m.. and he behaved violently
and improperly to her, aft^r first bolting
the door l)ohind him. She gave no consent to his
action nt all. She t-aid phe would call out, and a
21
I
■uiatheiie'vt room ^rould hear, and he then
tidtbtthe woulfi m-urtlt r her if she did so.
She ni<l she would tell her hnebmiKl, and he
(imdber£2(k'iiot toBTteak. She told her hnoband
fiieuherrturne^l. and he ha«l an interview with
the tlffpii*lftnt. Slie left for a neiiehboure farm,
tad then came back, to ''etch her furniture.
Tbeynw a Jn!«tice of the Peace and aftcrwardB
■a ittorney on the ►uhject, hut »o far no action
lad been entered attain Bt Ha worth.
CroK^xamined hy Mr. Hearle. Q.C. : She was
ail! livinif with her husband. Tnere were severftl
people living in the houf^e when defendant iniR-
eondncted hiineelf as al>ove. On defendant's
birthday, after the misbehavlonr had occurred,
■he tent some TerBea to defendant. They were
pat into an envelope, and she wrote on them
** ConKratnlaUonB from K.O."
Bf the Chief Jui^tice : She and her hu^ltand
had been invited to the birthday dinner, and t hey
refneed to go, bo her husband consented to
bier »endinv ver9eB. She did not compose the
Tersee hereeif. she copied them from a book.
She was to weak that she could not resist de-
fendant snificiently to prevent him < fPecting his
pnrpoee. She bad not wished to have people
abo^t the farm knowing anything of the
matter, and had. therefore, said as litt'e about
it a£ possible.
Mary Ann Haworth, the plaintiff, said she was
to the defendant in 1869. Rhe had
nothing of miaoonduct between her hus-
band and Mrs. Olivier until after she left
Trooilap's Pan. She heard of the matter alx>ut
eis^hteen months afterwards from a total
stranger. Mr*-. Olivier she had always con-
sidered a nio^t ret»pectable, well-behaved woman.
The children (boys) were thirteen and two years
old respectively. She objected to the defend-
ant having custody of the children because of
hifl violent and improper language. Defendant's
brother Qeorge said that defendant's language on
one occasion was nearly enough to make his
hair stand on end, and also that he did not
knowr a person on earth wlio cauld
nae such bad language as his brother.
She left Trooilap's Pan a few weeks before ner
aeoond child was bom. Defendant had refused
to bring her a doctor or let her see one. If she
wrote, all letters were to go through him. He
took her to Oran^^e River Station, and went to
Kimberley. She went to Jagersfontein. and
had only £10 given by defendant. Then to
Faore:<mith where she was confined. Since
then tibe had had to support herself by drcFs-
makins? In 1884 defendant offered her £0.1 a
Tear if shw would leave hira; but she refused
mfe^s she could take the eldest child. It was
VDirue thmt she wasgpiilty of intemperate habits.
She never saw liquor at Trooilaps Pan. Her
husband had nold the property settled upon her
by the ante-uuptial contract. She Kave her
consent afterwards.
CroHB -examined by Mr. Searle, Q.C. : She and
her husband had lived a wretched life together,
two years in Natal, nine yeari* in Jagersfontein,
three years in Bosjes fan, and then in Trooi-
lap'tf Pan. She called the latter place "the
wilderness," and did not like it very much.
She ha<l not told defendant that she
wanted nothing from him when she
left him. When he gave her £10 as she left
him she said: ''Is that all I am to get
through my sickness with?" He had written
to her once from De Aar stating that he had
just heard that she was dependent on other
people for support, and was willing to take her
back or allow her some money. She did not
reply to the letter. Her husband had lost a lot
of tr.oney at Jagersfontein. It was not because
of her intemperate habits that her husband had
had to close his hotel in Natal. He bad never
spoken to her about drinking. Conf>idering that
Qeorge Haworth was always the worse for
liquor, he was not a very nice person to say that
he had seen her the worse for liquor. Her hus-
band was a very temperate man. Her husband*
had attempted'to murder her. Mrs. Olivier had
seen him come out of the room with a knife and
a steel in his hand. He had said that if he
heard her speak one word ahout him or his
family to Mrs. Olivier he would put a
knife throuorh her. Defendant had never
used violence to her in anyone else's
presence. She had a temper, but not such a
one as she was credited with. They frequently
wrote letters to each other when in the same
house. After he had ill- treated her he always
used to sit down and write to her as though she
had been the offending party, when, as a fact,
he was to blame.
Re-examined by Mr. Innes, Q.C. : Her
husband had beaten her repeatedly with a
sjambok.
Cornelis Olivier, of Britstown, said that he
was formerly overseer for the defendant, and in
May, 1895, he went to fetch some poles from a
distance. When he came back his wife com-
plained of defendant's misconduct. He told
defendant that he was going to see a magistrate,
and left the farm, taking his wife with him.
He nfierwurtlb came back to the farm to clear
up matters. He saw a J. P. on June 6, and the
J. P. told hiui to wait till a magistrate came.
He t^aw a magistrate when he came on his quar-
terly visit to the neighbourhood. He had since
seen an attorney in the matter of the mis-
conduct.
22
Croes-examined : He was now in the poliee
force. Juj»t before he came to Haworth's he
had finished a term of three years' iin prison -
luent for robbery at Victoria West. He denied
that he had wanted to ffH money out of
Haworth. Ha worth had offered him £50 to
settle the matter. Once when defendant was
coining from Kimiterley to Trooilap's Pan, he
got his wife to write for him to stop nt Brits-
town to talk o\er the matter, and had a fpy set
in the room to hear any confession that miiiht
Itemade. He had written to defendant after
that, asking him to make an offer, or he would
proceed with an action sgainpt him.
This concluded the case for the plaintiff.
For the defence, Jacob Abraham Haworth.
the defendant, said that the first cause of a
most unhappy married life was drink; Three
days after marriage he found his wife
under the influence of drink. He had a splendid
hotel business in ^ atal, and gave it up to take
her from temptation A very little drink
affected her. The things numbered in the
ante-nuptial contract settled on his wife had
fetched, about £320. He was worth about
£3,0 when he got to Jagersfonteiu, and had
put it into landed property, which depreciated
in value very considerably owing to the amalga-
mation of mines. He then to€»k a farm in the
Free State named Bosjes Pan. He had always
kept the liquor locked up there. The value for
Divisional Council purposes of the farm he now
had— Trooilap's Pan— was £6 000. It was mort-
gaged for £6,200— £',000 at 4 per Cf*nt. and
£1,200 at 10 per cent. He had 1,600 sheep, 160
cattle, and 5"^ horses. He had a partner in the
farm who found the capital. He had never
beaten his wife with a sjambok. He had never
gone further than to pick her up and lock her
in her room, when he was tired of listening to
her abuse of his dead parent. He was some-
what 1 asty and gave way to bad languajre at
times, but never very bad. He had always en-
deavoured to keep the eldest boy trom tirink.
He would like the custody of the eldest boy,
though he was willing to let his wife have the
second child. He was afraid that the present
action would place him on the verge of bank-
ruptcy. It was untrue that he had committed a
rape on Mrr^. Olivier.
The Chief Justice : But you admitted adul-
tery.
Defendant : I am the victim of one of the
most dialK)lioal plots ever enscted in this
world.
The Chief Justice : Yes I yes ! but you ad-
mitted adultery.
Defendant : I still admit it, but I did nothing
b^ force, It wa« ftH airanged, and took plaa^
at half -past ten at night, when the rest of the
people on the farm had long been in bed. Con-
tinuing, witness paid that his eldest ton wonM
never have written to his mother if he had nut
made him.
Cross-examined by Mr. lones, Q.C. : He ha<l
always kf-pt liquor in the house, but locked up.
Knowing his wife's Infirmity, he had kept the
liquor under lock and key ; though his wife
found out a means of getting at it. He had
never driven his wifti into "lessis's farm with a
sjambok. The letter which she wrote, stating
that his inhuman c ndm t was killing her. was
untrue. He had made provision on the fariu for
his wife's confinement. In addition to Tfooi-
lap's Pan. he had ono-sixth portion of two other
farm<i. He thooght the value of them was
about £500. There was a Qovemment bou4l ou
them of £3,000, which was four-fifths of their
supposed value. He had had two years drought
to face which had robbed him of a large quan-
tity of his stock. He had paid £7,305 for Trooi-
lap's Pan He wa^ willing to try and main-
tain his chil ', but not his wife. He and his
partner had frequently tried to Fell the farm
Trooilap*s Pan. He could make no offer for the
maintenance of his wife. If the costs of the
present action were heavy, he saw nothing before
him but to surrender his estate.
Re-examined : He brought his wife out from
England to marry her. In connection with the
two farms in Kenhardt, of which he had one-
sixth share, be was now owing £150 to his other
partners.
George Henry Haworth, brother of the defen-
dant, said that he knew his brother*8 flnancial
l>osition. He had no money at alS. They had
suffered from drought for the last two years.
Cross-examined: His brother paid him £:0
))er month, and he had every hope that he
would get the money. It was owing to him.
His brother must be owing him quite £30().
The Chief Justice said : In this case it is
quite clear that adultery has been committed,
and the plaiutiff is entitled to a decree of
divorce with costs. There has l>een a great deal
of mutual recrimination as to the conduct both
of plaintiff and defendant. But in the view
which the Court takes of the case it is not
necessary now to go into that. On the whole
it is better, we consider, for the interest of the
elder child that the father should ooutinue in
charge of him. The defmdant is somewhat
excitable, but independent of one single act of
adultery, the father has not shown himself
entirely unworthy to have the custody « t the
child. As to the younger child, it is better that
the mother should have the custody of it.
Defendant hm now tp make proyisiop for main*
2S
tenance, and instead of ordering a monthly or
annual payment it is far better that a lump Butii
be Daid by defendant, and in estimating that
amount the Court must bear in mind the terms
of the ante-nuptial contract in which certain
cattle and other articles hare been settled on
plaintiff. They were estimated at a very high
ralue, and there is no doubt they were after-
wards sold at very much less than the value
which waa put on them. If the plaintiff had
refused to give her consent to the Bale the Court
would hare given ju<^gment for the Cull amount,
and estimated that amount at the value which
the parties themselves put upon the goods at
the time that the contract was entered into.
The consent having been given the Court must
be guided by the amount which these articles
aetuaily realised ; and we arc of opinion that
the sum of £320 would be a fair sum to be paid
by defendant. A decree of divorce will be
granted with costs, including plaintiff's wit-
ness's ez])ensee, plaintiff to have the custody of
the younger child and defendant the eldt'r, each
to haTe access st all reasonable times and places
to each of the children. The Court will further
order that the defendant pay to plaintiff the sum
of £320.
[Plaintiff's Attorney, P. de Villiers ; Defen-
dant's Attorneys, Messrs. Van Zyl Sc Buissinn^.]
JEWKLL AKD BUTTBB V. HAZELL f 1897.
AND STKEK. j Feb. Ist.
Co-owutrs — Partners- Implied autho-
rity — Tacit lie:i -Piedj^e of title
deeds — Loau on moitgage —
Ageuts' charges.
Where land hwt hep/i trans ferrrd hy
one caul the same deed to two or more
peraonn^ one co-owner hax no implied
or tacit authority to pledf(e the trann-
fer deed an security for the charges
of a commission agent in attempting
to raise a loan on mortgage of the
land at the request of such owner
without the consent of his co-owners.
Such a commission agent has no lien on
the transfer deed for his charges or
for the projmsed lender s claim
for interest in lieu of notice in
respect of a loan which has been
negotiated hut subsequently cancelled.
This was an application by Samuel Henry
Jewell and John Robert Butter, cnlling upon
the respondents, Thomas Herbert Hazeli and
Frederick Beecher Steer (lately carrying on
business as Messrs. Hazeli k, 8teer) to show cause
why they should not be o:dered to deliver to the
applicants a certain deed of transfer of ground
situate at Salt River, the said transfer being
illegally detained by them ; and to pay the costs
of this application.
The applicants' atlidavit set forth :
1. That they together with one John Jewell
purchased from Alfred Thomas Rutter a
certain plot of ground, being Lot !» in Block £
in the estate called '* Eberstadt," situate at
Maitland near 8alt River Railway*Btatiou.
2. The selling price was £2J, and on the 9th
day of April, 1896, transfer of the i^aid lot of
ground was passed in the Deeds Office, in Cape
Town, to Samuel Heniy Jewell, John Jewell,
and John Rolwrt Rutter.
3. Bach of the partners paid his pro rata
share in the pui chase price of the ground and
expenses for passing the transfer.
4. The transfer was prepared in the ottice of
Attorney William £. Moore, and John Jewell
was entrusted by deponents with their shares of
the transfer expenses to pay for the release of
the transfer.
6. In the month of April, 1896, applicants
found out that the said John Jewell had
obtaineil the transfer and delivered it to Messrs,
Uasell & Steer, for the purpose of raising a loan
on all the shares in the transfer.
6. The transfer was demanded from Messrc.
Hazsll k. Steer, who refused to give up the same
to deponents on the ground that they had got a
loan of £350 sterling from William Marsh on
the property, which loan John Jewell had since
cancelled. That they i-etained the transfer as a
lieu for interest claimed by Marsh on his loan
and for their commissiou fur obtaining the loan.
7. The transfer was fraudulcutly and secretly
tal.eu by Jolm Jewel to Messrs. Hasell k. Steer
without the consent of deponents, and he framlu-
leutly. illegally, and without their knowledge
attempted to raise the money on the shares of
the ^)ersons mcutione i in the transfer.
5. Deponenls ^ave no written or verbal autho-
rity to the said Hazeli & Steer to raise the loan,
and have rsc ived uo satisfactory explanation
from Hazeli k Steer as to how a loan of £35U
sterling was granted by Mr. Marsh on a plot of
ground which only cost £20.
9. Deponents lastly say that John Jewell had
sold his share in the ground before he took the
transfer to the said Hazeli k Steer, to one of
the deponents, viz. to the said John Robert
Rutter.
Deponents therefore jointly and severally
pray that as the transfer aforesaid was wrongly,
unlawfully, and fraudulently put into the hands
u
of the said Hazell k Steer, they be ordered to
restore the said transfer to deponents with
costs.
The following affidavit was tiled for the re-
spondents by Frederick Beeoher 8teer, one of
the above-named respondents, and liquidator of
the late firm of liaeell Sc 8teer :
2. I l^now nothing of an arraagemont existing
between the applicants and one John Jewell
referred to in paragraph 4 of applicant's
affidavit.
3. I deny having received the deed of transfer
in question, prior to April, 1896, as stated in para-
graph 6 of applicants' affidavit, but on or a out
the 4th day of June, L81)u, John Jewell called at
the office of Hazell k Steer, and requested me
to obtain a loan of £450 upon security of cert-ain
two houses to be erected (each containing three
rooms and kitchen, &c., and oue with a shop in
addition) situate at Halt River.
4. That in accordance with these instructions
I applied to one William Marsh for such loan, as
will more fully appear from the copy of a letter
addressed to him by the said tirui, on the 5th
day of June, 18%, hereunto annexed marked A.
This application wai4 refused, but I ultimately
succeeded in obtaining a loan of £35U.
5. That on the 19th June, John Jewell again
called on me and signed a power of attorney to
pass a bond for the said amount of i^ioO (the power
of attorney is hereunto annexed) and said that
his partners, the above-named applicants, would
also call to sign the power, which, however, they
did not do.
6. That shortly after this John Jewell again
called on me, and expressed his wish to cancel
the loan of £350, to which, however, I objected,
but subsequently agreed on the distinct under-
standing that our commission for raising tht'
loan, and three months' interest in lieu of notice
be paid ; which terms he accepted, it being ex-
pressly agreed that the deed of transfer should
be retained by said Hazell & Steer as security
for such payment.
7. That I was totally unaware that the said
John Jewell was not acting perfectly bopui fide
in the matter, and that in the whole transaction
I considered him as acting for the finn, and
treated him accordingly.
8. I admit having received no written instruc-
tions from the above-named applicants to pro
cure the loan, but acted on the verbal instruc-
tions of one of the partners in the said firm of
Jewell Bros.
9. That I did not know at that time that the
said John Jewell had sold his shore in the pro-
perty, and that at the time ol this transaction
he was still apparently a partner in the said
firm.
The applicant Rulter made a replying afii-
davit saying: •'^osoon as deponent heard that
the transfer of the ground was in the handtt of
Haze?] k Steer, he went to their office and
asked if the transfer was there. He saw Mr.
F. B. Steer, who told deponeut that he had the
transfer but that he kept it b cause there was a
claim for interest and commission due. and
that he wanted also tive pounds sterling, to
transfer John Jewell's share of the giouad to
this deponent, from which statement this
deponent inferred that Steer must have heard
from John Jewell that he had sold his share to
this deponent.
On the 2dth day of Septe:nber, 1896, deponent
caused a demand to be made ol Hazell k Steer
for delivery of the transfer, and that a reply
wa< received from them on the 29th September,
1896; that no mention was made in the said
reply or at any time previously that the said
John Jewell had pledged the transfer or given
it as security for the claim of interest or com-
mission preferred by Hazell k Steer, and that
now for the first time deponent hears of such
pledge. John Jewell has left the Colony and
is not now in the jurisdiction of the Court.
The respondent Steer in a further affidavit
denied having demanded £5, as alleged, to
transfer John Jewell's share alleged to be
sold to J. U. Rutter; and said that the first
intimation be received of such sale to Rutter
was when Rutter ealied on him.
Mr. Buchanan, for the applicants: The appli-
cants' business is clearly not a partnerf hip but
a co-ownership. In spite of what the parties
call themselves in their affidavit this is clear
from the facts, e,ff, one partner went to get
transfer to himself of the part held by another
— which a co-owner u.ust, a co-partner need
not, do. A co-owner could not pledge the
shares of the other co-owners. The only
pledge was the plcdi^e of the title deed.
There is no tacit lien over the title deeds
when the express purpose of the deposit of the
deeds is to raise a loan. There is no proof ol
express agreement of lien, and the mere deposit
of the title deeds as a pledge is idle and gives
no right. Even a partner cannot bind the
co-partners unless there is an express or im-
plied authority. The parties now claiming this
transfer deed have always alleged that the
deposit was fraudulent and illegal. The
deposit was not made in the usual course of
business. It was not within the apparent
authority of the partner.
Mr. Searle, Q.C.. for the reB(X>ndents : It is
clear from the aQidavits and from the title
deed that the i)arties looked on themselves as
partners in a business ; and John Jewell could
^5
bind bk oo-pariaen aooordinglj. ( Van Leenwei^
C^as. For., PW L, Bk. IV., section 10, p. 266,
Barber's TraosUtioa.)
De Villiers, C. J •' If the respondents have the
right to retain the title deed against the will of
the majority of co-owners of the land, they
must have the right either by virtue of a special
agreement or by virtue of a tacit lien.
To prove such a special sgreement the respon-
dent Steer states in his affidavit that he has
been authorised by John Jewell, one of the
oo-ownera, to raise a loan on mortgage of the
land, that after the loan had been negotiated,
John Jewell expressed a wish to cancel the
loao, and that he (Steer) agreed to this on the
distinct understanding that he should retain the
transfer deed as a security for his commission
for raising the loan and for three months*
iattiest due to the proposed lender in lieu of
notice Assuming these statements to be correct,
the question arises whether John Jewell had
any authority from his co-owners, the two
applicants, to pledge the title deeds as security.
There is no evidence whatever of express
authority, bat the respondents* contention is
that John Jewell, as one of tiiree partners
owning the land, had tacit authority to borrow
money on security of the land and, therefore, to
give the title deeds as security for expenses in
raising the cancelled loan. It is not proved,
however, that a partnership, in the true sense of
the term, existed between the three co-owners.
The affidavits refer to them as partners, but
apparently no more is meant than that they are
co-owners of the land in question. It is unneces-
sary, therefore, to inquire into the power of one
partner to bind his co-partnen by raising money
on mortgage of land or pledging the title deeds
of such land. The nature of the partnership,
the usual course of dealing between the partners,
aad the object of the loan would be important
pomts in snch an inquiry, and the affidavits are
silent on these points. 1 am satisfied that as
oo-owner of the land John Jewell had no tacit
mandate from his co-owners to pledge the title
deeds, and that the special agreement with him
relied upon by the respondents does not justify
their retention of the transfer deed. The appli-
cants were at hand, and the respondents, before
attempting to raise money on mortgage of- the
laad« ought to have asked for a power of
sttomey signed by all the co-owners.
The next question is whether the respondents
have a tacit lien on the deed. If the deed had
been drawn by them, they would liave been
entitled to retain the deed until their lawful
charges for their work and labour had been paid
to them. The applicants would not have been
estitled U> the benefit ef the deed, without pay-
ing the professional charges for drawing the
deed. But that is not the nature of the charges,
in respect of which the respondents claim the
lien. Their commission for raising the loan and
the proposed lender's claim for interest in lieu
of notice, constitute no part of the expenses
neoei'sary to pass the transfer. Upon this point
the case of Qveen^s lown Assvranoe Company
V. Woodi» TmttM (6 Juta, 827) may usefully be
compared with Trtuteet of THtseh v. Berrange
(3 Juta, 217) If the respondents have a valid
claim against the applicants, they may bring
their action, but they are not entitled to retain
the title deeds. The application must be granted
with costs.
Their lordships concurred.
[Applicants* Attorney, J. Ayliff: Respon-
dent! ' Attorney, A. Steer.]
SUPREME COURT.
[Before the Bight Hon. Sir Hknby db Yil-
LIBBS, K.C.Bi[.G. (Chief Justice), the Hon,
Mr. Justice Bughanak, and the Hon. Mr.
Justice MAA8D0SP.]
MAHUMA V. MAHUMA.
\ 1897.
{Feb. 2nd.
This was an action for the restitution of con-
jugal rights brought by the plaintiff against his
wife.
Mr. Olose appeared for the plalntiif.
Hendrik Mahuma said he was married to his
wife in the Free State at Bethulie in 1884, each
of them having been married brfore. Plaintiif
had seven children of his first marriage, and his
wife had four by her previous marriage, but
thero were no children of the present marriage.
Witness left the Free State to come into the
Colony, and his wife refused to come with him
or to leave her children. She had also neglected
to answer his letters.
A decree of restitution of conjugal rights was
granted ; the defendant to return to plaintiff on
or before April 15, failing which a rule nUi to
be issued calling upon the defendant to show
cause on May I why a decree of divoroe should
not be granted, and the defendant be declared
to have forfeited any benefits accruing to her
by reason of having been married in community
of property; personal services to bo effected,
failing which the same publication as before.
[Plaintiff's Attorneys, Messrs. Fairbridge,
Ardeme & Lawton.]
26
BBIO V. SUBVBYOK-OBNBRAL.
1897.
Feb. 2iLd.
Feb. 10th.
Grant — Construction of — Boundary —
Diagram — ** Contiguous to " — " Ex-
tending towards " — Sea.
In the body of a grant the words
" contiguous to " were used in defiu"
ing the boundaries on three sides of
the landy but in describing the fourth,
i.e. the N.E. side, the boundary is
said to be ** to the sea,'' and on the
face of the grant th^re was an indorse^
ment, in Dutch, adjoining the diagram,
that on the N.E. side the land extends
** towards the sea " " naar de zee."
The diagram itself agreed with the
extent of land appearing in thegrcutt
and with the existing beacons which
were away from the sea, whereas if
the sea were tahen as the boundary
the extent would be greatly in excess
of the extent granted.
Held that the owner ums not entitled
to Claim from the Surveyor- General
an amended title showing the seashore
to be the boundary on the N.E. side.
This was an application on notice oalliog
upon the Surveyor-General to show cause why
he Bhould not be ordered to issue to the appli-
cant an amended litle of his property at
Simon's Town under the provisions of Act 9 of
1879.
After this notice had been served the Ifnnici-
pality served a notice on the applicant calling
upon him to show cause why they should not be
allowed to intervene.
The applicant consented to their intervening.
The facts are briefly these : The applicant is
the registered owner of three pieces of land
adjoining each other, situated at Simon's Town
and transferred to him on 13th October, I8i'2.
The total extent of the land was 4 morgen
190 square roods and 42 square feet.
In November, 1896, the land was re-surveyed,
and the surveyor, as the applicant alleged,
found that the diagrams did not truly and
correctly represent the boundaries of the land,
and thereupon an application was made to the
Surveyor-Qeneral for an amended title under
provisions of Act 9 of 1879,
The extent shown on the diagram framed by
Mr. Reid*8 surveyor exceeded the extent shown
on the original diagram by 2 morgen 69 bqoare
roods and 102 square feet.
The land in question was held under two
grants — one made to Cloete in 18 j6 and the
other to T. T. Harrington in 1818. I n Cloote'a
grant the north-east boundary was deserioed ss
being contiguous to the beach, and in Harring-
ton's grant the north-east boundary wna
described as "extending towards the aen,''
C'Mtrehkende naar de zee"}, the other boun-
daries being deeeribed aa strekkende man.
The last-mentioned grant contained the follow-
ing clause :
2hat Goremment, if tktmgkt proper, shall
have the right of erecting batteries along the
seashore, and making roads to ike monnUUns,
The applicant claimed the land to high water
mark as shown on plan A and alleged that the
portion of the estate below the road was fenced
in to the sea cm both sides, that there waa no
enoe along the northern boundary, but that
here was a fence or hedge on the north aide
of Seaf ort of which his prooerty formed portion.
The 8urveyor>General refused to issue an
amended title on the following grounda, inier
alia:
1. That he had reason to believe that Crown
land was encroached upon. and included within
the boundaries of the land as re-surveyed and
claimed by the applicant.
2. Ihat the Act 9 of 1879 waa intended toapply
to cases where the survey as per existing beacons
diifers from the diagram by which the owner
holds possession of the land, the beaoona being
undisputed and provided no Crown land is in-
cluded. That in the present case there waa no
such difference, as the diagrams attached to the
applicant's transfers represent the extent of the
land purohased by him, there being no difference
between the beacons standing and the beacons
as per diagram.
3. That the boundaries of the appUcant*a land
on the beach side are represented, according to
the original diagrams, by straight hard lines
which agree with the beacons on the ground,
and not by a curvilinear boundary as represented
by the diagram filed for the pnrpoto of obtain-
ing amended title.
4. That in the title given to T. T. Harrington
in 1818 the boundary facing the aea shore is
described as extending to {strekkende naar)
the sea, while on all otiier sices it is described
as extending oontiffuous to {strekkende aan)
Oloete's property, public road, and Goremment
land.
6. That tlie Munioipal Commissioners of
Siafton's Town, in the interest of the paUio, have
EXPLANATORY PLAN jf:
TiM kbova W-c* liiudjiffiir
b«Mf«rrad to i. A. Beid, on 1!
*" Tha dtitUd linn denote an Kdititlooal extent of land to whloh Ur. .R«i*lJ<>r8 claim Jq accoril-
tobar, 1^112, aow re-tiirve^el undvr the Ainenited Title
b Haw^nDber. 1996,
(8gd.) T. TBNNANT WATSON, G.l..a
28
rttised the strongeat opposition totheacquiBition
of the additionml 2 morgen 69 squftre roods and
1Q2 square fcM)t which would fall within appli-
cant's boundary were his application granted.
6. That in the original diagram of the larger
extent c*f the land in question (Harrington's
grant) the sea shore is not even depicted.
A previous owner of the property alleged that
he always understood and believed that the
boundary of the land did not extend to the sea,
but was limited to the beacons which still exist
on the ground, and which define the extent of
the land.
Mr. Hugo, a son of a former owner of the
property, alleged that he could recollect the
uninterrupted use of the foreshore and of the
ground now applied for by the public for a period
of at least 46 years
Mr. Hearle, Q.O., for the applicant: The whole
case turns on the construction of documents
under which Mr. Beid holds. The Surveyor-
General reads Act 9 of 1879, section 2, as if
" boundaries " meant ** beacons." The sale was a
private one, and Mr. Reid adheres to his title
deed. He did not buy on i he general plan. The
point at issue is simply — is the land claimed
Crown land ? No one but the parties to the suit
has any claim. The Burveyor-General says that
either "extending to " or *' extending towards "
is the equivalent of "strekkende naar^'* the
words used on the grant. In Harrington's case
the words were " cDutiguous to " the river. It
would be an awkward phrare to use in connec-
tion with the sea. The Court is bound by the
Dutch words used on the grant. Their proper
meaning is " stretching to " the sea. Therefore
the grant is clear, the land granted extends up
to the sea— to high-water mark. If the words
on the grant are clear the diagram is imma*
terial.
The Acting Attomey-Oeneral (Mr. Shell) for
the respondents: Apart from the question of
prescription in favour of the inhabitants of
Simon's Town raised by the Municipality, and
which would prevent the Court from deciding
the question at issue on motion, even if the
Court were of opinion that Mr. Reid had any
claim, there is sufficient evidence that the land
which Mr. Reid claims is Crown land.
The grants and diagrams both agree as to the
extent of land granted to Cloete, in 1806, and to
Harrington, in 1818, and it is common cause
that the same extent of land has in both
instances been conveyed to the applicant under
his transfers of the 13th October, 1892.
Mr. Reid now claims nearly half as much
again by virtue of the vague expressions used in
the grants ttrekkende naar in Harrington's
grant and to the beach in Cloete's grant.
«i
The primary meaning of naar is " towards,
and if it had been intended to grant f he addi-
tional land which the applicant now claims the
same language would have been employed in
describing the north-east boundary as was used
to define the boundaries on the other three sides
y\z,— ttrekkende aau^ *«., contiguous to or touch-
ing.
Barrington's case hv ver>' little application
to the present, as that case was practically
decided on the question of prescription, which
the applicant does not raise in the present
motion.
As to the right reserved by the Crown of erect-
ing batteries along the sea shoro and making
roads to the mountains, that means that the
Crown shall have the right of entering upon the
applicant's land to construct such works.
It is submitted that the Surveyor-General was
amply justified in refusing to issue an amended
title.
Mr. Searle in reply : It is important to notice
that the Government reserve the right to erect
batteries on the foreshore. This is clearly an
acknowledgment that the land is the grantee's,
subject to right to enter on it again to build
batteries.
Mr. Justice Buchanan : Strekkende aan is nsed
in every other case but this.
Mr. Searle: Tes, because "aan** would te
inappropriate hero. There is no fixed thing that
the land can extend to.
The Court, after the cane had been argued and
judgment reserved, having expressed a dcRire to
have some evidence as to when the beacons
which now define the limits of the land, were
erected, the applicant filed an affidavit sworn to
by Mr. P. K. Maskew, Government land sur-
veyor, who ilepoeed that in the year 1884 he sur-
veyed the estate Seaforth, at Simon's Town, for
the late Mr. Hugo, and found no beacons of any
description along the lower or sea side of the
property with the exception of a cleft in a rock
at the comer which Mr. Hugo pointed oat to
him.
That there were beacons along the road Bide,
and that the beacons now in existence on the
sea side were erected hy Mr. Hugo on spots
fixed by him (Mr. Maskew) as corresponding
with the original diagrams of the property.
In answer to these allegations Mr. Rittman
deposed that he was the owner and resided on
the property adjacent to that of the applicant
for the past S6 years, and that during the whole
of that time the beacons facing the sea were in
existence as at present.
Mr. Bull deposed that he was born in Simon's
Town 62 yeare ago. and that as long as he could
29
weolleet, certainly for tHe p«et 40 years, the
kuoK existed on the same spot* as they do at
pment
iW«ClOth Feliruary;).
The Court delivereil juilgiueni, making oo
onkr OQ the anpltcatiou.
DeVUUere, C. J. : Tbi» is an application call-
ing apoa the respondent to sliow cauae why he
dttU not be ordered to iesue to the applicant an
untBdei title of his land showinic the sea shore
to be the boundary on the north -east side. The
kpplicMit holds the land under three grants of
diftinct UytA, but the grant to which the dispate
m^nly relateB was made in the year 1818. On
the fac« of that i^rant there is a diagram which
corresponds with the extent of land granted and
with the beacons now standing on the land«
The beaobDB on the north-east side are some
distance from the sea. Next to the diagram
there i« an indoreement in Dutch that ''the ad-
]<4oing land refiresents a piece of land enclosing
3 morgen 221 square roodf*, extending north-
weca toCloete*s land, south-west to the public
road, south-east to Govtmment land, and
north-east towards the 9€&—{naar de tee)"
In the body of the grant appears the follow-
ing pasivase in English : " I hereby grant onto
Thomas Harrington 3 morgen and 221 square
roods. .... on the north-west contiguous
to a x>iece of land belonging to P. L. Cloete, on
th«; £4>uth-weiiit contiguous to the public road, on
tbe ^oath-east contiguouB to Qovemment land,
and on the north-east to the sea. After the
arxtuuent.< had 1>een heard, an affidavit made by
Surveyor Ma^kew was tendered to the effect
that when he surveyed the land some years ago,
there were no beacons where the existing
beacons stand. The affidavit was admitted on
condition that the respondent should be allowed
to file counter affidavits. Two such affidavits
luadf by old inhabitants have been filed, which
i^tate that for upwards of forty years beacons
have »tood in the Fame spots on this side of the
land facing the sea. It i» unnecessary now to
decide between these conflicting statements,
iKroauae the existing beacons have been recog-
nised by former owners and were pointed out to
the applicant before he bought the land. In
support fif the application the ca^e of Barring'
ttpm V. Ctfloiual GovermnetU (4 Juta, 408) has
been relied upon, but that case was very
different from tbe present. The boundaries of
the farms in qoestion were defined in the grants
as lieing "contiguous to'* certain rivers, the
dis]^rain« did not correspond with the beacons,
tod tbe beacons, if comer beaeons, included a
macb greBier extent of land than appeared in
tbep^U. In the subsequent ense of Hirsch
V. Gill (10 Juta, 156), it was held that where the
diagram attached to a deed of transfer does not
conflict with the description of the boundaries
given in the body of the deed, such diagram
affords valuable evidence as to the boundaries
of the land transferred. In the present case
there is some obscurity in the description of the
boundaries given in the grant. The words are
capable of the meaning that the boundary on
the north-east is the sea, but they are also
capable of the meaning that the boundary is
towards or in the direction of the sea. In this
uncertainty the diagram affordi valuable
evidence as to what was really intended to be
granted. That diagram corresponds exactly
with the extent of the land granted. It
corresponds also with the existing beacons which
are Rome distance from the seanhore. If the
seashore were taken to be the boundary, this
extent of land would be vastly greater than
that which was intended to be granted. This
clearly is not a case in which an amended title
should be ordered to be given by the Surveyor-
Qeneral, and the application must be refused
with costs.
Buchanan, J : I am prepared to adopt and to
apply to this case the principles laid down In
Burrinffton's ca4te, nsmely, that the grant con-
stitutes the contract between the grantor and
the grantee, and where the terms of the grant
are clear, effect must be given to those terms
even if the diagram presents a different figure
from that which the land granted in those tenns
woujd assume ; and further, that in construing
a grant of land we must look at the meaning
which the grantee was reasonably justified in
placing upon the terms of the grant. The factt)
of this case however are very different from
those proved in Barrinffton^g cate. Here the
grant and the land itself as described by the
diagram agree as to the extent. There may be
Bome ambiguity as to the meaning of the words
describing the north-east boundary, but when
these words are compared with those used in
describing the other boundaries I think they
were not intended as conveying ground right up
to the high water mark. The occupation of the
ground by the grantees themselves shows they
did not understand the seashore to )it the bound-
ary, aud the beacons placed, as some witnesses
say more than forty years ago, show that no
claim had ever before this been set up to the
boundary now claimed. Here then, we have the
grant, the diagram, the extent, the occupation,
and the beacons all against the applicant. Under
these circumstances I am of opinion that the
present application must be refused.
Maasdorp, J. concurred.
Application refused accordinglyt with costs.
89
[▲t>plieant*8 ▲ttomeyfi, MeBSK. Raid Sc
Nephew ; ReBpondent's Attoroey, Messrs. Van
Zyl A Buissinn^]
VOETUro'S KXBCUT0B8 V. ABRAHAM. I Pq{) 2Qd.
Griqua Law — Community of property.
In ati cwtiott brought by a Griqua to
recover hig tmUemal portion of a cer-
tain farm in Ch'iqualand Ea»t from
hi it father^ the question arone irhefher
according by the lair of that country ^
before itn an/nexaium to the Colony^
the law of community in'evailed be-
tween UpOUHCS,
Held on appeal, that the burthett
of proving such community lay upon
the plaintiffs anfl, tluit in the absence
of such pi'oof the Court below had
properly granted absolution from the
instance.
This was an appeal from a decision of the
Resident Magistrate, Kokstad, in an action
wherein the plaintiff, Johannes Fortuin, in his
capacity as executor testementary in the estate
of Adriana Fortuin (born Abrahams), claimed a
statement of account in the estate of the late
Francina Abrahams from Fredericic Abrahams,
her surviving spouse.
The summons alleged :
1 That plaintiff was married, without com-
munity of property, to Adriana Fortnin (lK)m
Abrahams), who has since departed thin life, and
by whom he had three children, who are all still
living.
2. That by her la^t will dated the 28th day of
October, 1886, the raid late Adriana Fortuin
appointed plaintiff the executor of her estate,
and that he has received the appointment
aecordingly.
3. That the said late Adriana Fortuin was a
daughter and heir to Francina Abrahams, who
was the predeceased spouse of defendant, and to
whom the latter was married in community of
property.
4. That the said late Francina Abrahams left
three heirs, viz.: Frederick Abrahams, jun.,
Francina Jacoba Abrahams, and Adriana Abra-
hams, plaintiff's late wife.
6. That at the death of the late Francina
Abrahams the joint estate of herself and her
husband (defendant) consisted of sundry live-
stock and the farm Driefontein, situate in
the district of Mount Currie.
6. That the said Francina Abrahams departed
this life in or abont the year 1864 or 1866.
7. That defendant has not as yet rendered »
proper account to the Master or to the heirs or
any other persons of the estate of the said
Francina Abrahams, neither has he given the
heirs proper and legal poesession of the portlona
due to them out of the said estate, neither has
he taken the necessary steps to have the said
estate administered according to law.
At the hearing before the Magistrate the
defendant set up the following pleas :
1. That an executor should be appointed (o
administer the estate who could sue and be
sued on behalf of the estate, and there is no
cause of action by plaintiff against the defen-
dants.
2. Defendant denies that the farm Drie-
fontein was the property in the joint estate of
defendant and his late wife, but says that it
was the sole and separate property of defen-
dants granted to him years after the death of
his wife, that whatever estate was left at the
death of Francina Abrahams was duly admin-
istered and distributed according to Griqna
law and custom in the year 1864, and the
shares of the heirs paid out to them in doe
course.
8. The general issue.
Upon hearing the case the Resident Magis-
trate gave judgment of absolution from the
ini^tance for the following reasons :
This is an action instituted by the plaintiiE.
Johannes Fortuin, in his capacity as executor
testamentary in the estate of his late wife
Adriana Fortuin, in which he claims a state-
ment of account in connection with the eetate
of the late Francina Abrahams, wife of defen-
dant. During the hearing of the case, it was
admitted by plaintiff that the claim in respect
of the movable property has been settled, and
the question which therefore remains to be
decided is substantially this, via., whether the
children of the lald Adriana Fortuin have an^
claim to a portion of the farm Driefontein.
Before proceeding to consider this question it
will perhaps be advisable to give a brief sum-
mary of the circumstances out of which thia
claim has arisen. It would appear that defen-
dant, a Griquaburgher, came to Bast Griqualand,
which was then commonly called Nomansland,
with his chief the late Captain Adam Kok, in or
about the year 186S, under a promise that he
would receive a grant of land. On the ai rival
of the Griquas in this part of the country, each
burgher was allowed to pick out a farm for him-
self, subject to the approval of Adam Kok
Defendant, it seems, selected the fiurm Dri
fontein, and occupied it until a few moQ
SI
after his wife's death, when he removed to the
Cctfony. PreTioTiB to his departure Adam Kok
canaed the movable property In the deceased
wile*8 estate to be apportioned Ijetween defen-
dant and his children, in accordance with what
is alleged to have been Griqua custom at the
time. After remaining away a number of years
defeodant retnmed, and again occupied the
fiarm Driefontein, and subsequently his right to
it was formally confirmed by Adam Kok in 1871.
After this (but in what year is not very clear),
plaintiff married defendant's daughter, by whom
he had three children, on whose behalf he has
now preferred this ciaim. Hubsequent to their
marriage, plaintiff and his wife were allowed by
defendant to liv on a portion of Driefontein,
where they built a houne and made other im-
provements. Eventnally the wife died, but
plainyff continued to live on the farm until
dispute? took place between him and defendant
in consequence of his objection to bear a share
of certain expenses connected with the erection
of a fence between Driefontein and an adjoin-
ing farm, the result being that he was 8um-
marily ordered by defendant to qui^. These
seem to be the facts of the case as far as can be
gathered from the evidence. A considerable
portion of the evidence was directed to one
particular question, vis., whether community of
property between spouses existed amongst the
Griqua immigrants. It is manifest that this is
the crucial point in the cafe, and the decision
mainly hinges upon the answer to it. A careful
eoBsidcration of the evidence shows that there
is coosiderable conflict between the witnesses.
On the one hand, plaintiff and his witnesjes
H. Besnidenhout and Werner state that the
principle of community both as regards mov-
able and immovable property was recognised
by the Griquas, and that when one of the
spouses died half of the joint estate was
divided between the survivor and the children of
the marriage ; on the other hand, Jan Bergover
fays only landed property was subject to
community, while it will be found that defen-
dant and his witnesses maintain the opposite
view to that advanced by plaintiff. According to
Mr. Brisley (who at one time held office among
the Griquas) community of property was not
recognised. Husband or wife oould hold I
property (either movable or immovable)
separately, and in the event of the death of
either of the spouses the property in the
deceased's estate was divided between the
ehitdren and the survivor. He states furt<her
that in the event of the death of a woman
whose husband owned landed property, the
latter was not bound to divide it with the
ohIldreB although it was a frequent thing for a
father " to create community or make divisions
of property," but there was no law to compel
him to do so. It is also dear from his evidence
that as regards farms granted to the burghers
by Adam Kok such farms were not considered
to l)e the joint property of husband and wife.
After careful consideration I am inclined to
accept the views advanced by defeudant and
his witnesees. It seems to me that the weight
of evidence is on bib side. Both Piet Bezuiden-
hout and Ludovick Kok appeared to under-
stand what they were speaking about, which
was a circumstances not ecjually manifest ia
the cape of rome of plaintiff's witoesses. For
example Jan Bergover states that when his wife
died his farm was sold and the proceeds divided
between him and bis children, but his son
Frans Bergover alleged that the farm remained
in the possession of his father who subsequently
mortgaged it, the result being that it was sold,
and the children never derived any benefit from
it. As regards the evidence given by Piet
Bezuidenhout and Ludovick Kok, I need merely
say I found no reason to doubt their bona fides.
In proceeding to give further considerations to
Mr. Brisley's evidence, I may say I attach great
importance to it ; holding as he did a somewhat
responsible position in the Griqua Government
it is in the highest degree probable that matters
subject to Griqua laws or customs frequently
came under his cognisance. In addition to this
he appears to be an intelligent man with a fatr
amount of education, and thus he wasl>etter
fitted to acquire a comprehensive knowledge of
those laws and customs than illiterate Griquas
could be expected to gain. Again, I take it that
he is a perfectly disinterested witness, and that
the deeision in this case cannot affect him
personally as it might possibly the Griqua
witnesses. For these reasons I am satisfied to
.accept his exposition of the Griqua laws and
customs which were in operation at that time in
preference to that given by Jan Bergover, or H.
Bezuidenhout, or Werner. Under these circmn*
stances 1 am forced to the condusion that
community of property as between Griqua
spouses did not exist in times anterior to the
annexation of the country by the Colonial
Government. In the course of his argument,
plaintiff' s attorney, cited the case of J, P,
Wildredfftf v. W, Kok, as supporting his conten-
tion that community did exist, but in my
opinion that ea»e if it can be said to prore any*
thing proves the opposite proposition. It is
shown there that by the advice of the then Chief
MagUtrate, William Kok ceded the half of his
farm to his wife. This ces:ion, which was sub-
sequently declared to be valid, would indicate
that Kok looked upon the farm as his exclusive
32
droperty and that it was so regarded by the
Court, which practically ratified the traosac-
tion.
The system which prevailed in respect of pro-
perty was very simple, and was one which was
adapted to the circumstances of a people who
were not in a position to keep written records
of their transactions. It would appear that
when two persons were married, the property,
whether morable or immovable, which each
posseesed previously was held separately. On
the death of one of the spouses, the movable
property of the deceased was divided between
the children and the survivor, while the landed
property was retained in the hands of the sur-
viving spouse, and occupied by him or her as
the case might be in conjunction with the
children. This is exactly what has happened in
the present case, the property belonging to the
late Abrahams was divided between her husband
and the children. Had any part of the princi-
ple of community of property between spouses
been recognised at that time, it is reasonable to
suppose that Adam Kok, who seems to have
invariably taken steps to cause moveable
property to l>e distributed, would have given
directions that a proper and lawful disposition
should at the same time be made of the
landed property. But no instances in
which he dealt with the farms granted by him
to his burghers have been cited by any of the
witnesses. This circumstance goes far to show
that the statements of Mr. Brisley and Piet
Besuidenhout, to the effect that these farms
were regarded as belonging exclusively to the
grantees, are correct.
There seem to have been a tacit understand-
ing, that any of the sons or daughters who got
married had, and have during the lifetime of
the surviving spouse, a sort of claim to settle on
the land. This claim was not however based
upon any right arising out of the estate of the
deceased parent. It is not easy to define whence
it arose, but it may be said it was derived from
good feeling on the part of the surviving parent.
Plaintiff alleges that defendant assigned a
portion of the farm Driefontein, and told him
that it was the share accruing to his wife
Adriana Foriuin out of her mother's estate.
That a part of the farm was apportioned among
bis children is not disputed by defendant, but
be explains that in allowing them to live on
the farm, he was actuated by paternal feelings
and that none of them claimed a right of
occupation by virtue of any title arising out of
their mother's estate. It may be that plaintiff
tiiought and still thinks that his wife derived
her right of occupation through her mother and
possibly the document marked A, which defen-
dant signed when the question arose in regard
to his passing a mortgage on the /arm may-
have lent some colour to this idea.
TbiB document was au undertaking signed by
defendant declaring *' that only my half-share
of the farm Driefoutein shall be liable for this
debt-, " and that should the liond be called up
" the portion belonging to my children will not
be endangered."
But in my opinion the e:£planation giveu by
defendant as to how his children came to have
a portion of the farm allotted to them is not
inconsistent with the documentary evidence
that has been adduced. Plaintiff has failed to
prove that the allotments of land given to each
of his children by defendant on tlio farm
Driefontein, can and ought to be regarded as
the portions accruing to tbem out of their
mother's estate. I accept defendant's explana-
tion of what his intentions were when he bo
apportioned his farm. What rights this pro-
ceeding on his part really conferred on his
children is not the point at issue in this action.
I am only requireu to find an answer to the
questions that have now been raised by the
pleadings.
To sum up then the conclusions I have arrived
at, I find :
1. That community of property between
spouses was not recognised by the Griquas
during Adam Kok's time.
2. That the farm Driefontein was the exclu-
sive property of defendant and that on the death
of his wife ii; did not form a part of her estate.
8. That the allotments on Driefontein given
by defendant to his children were not portions
due to them out of their mother's estate.
If these conclusions are correct then it fullows
that plaintiff is not entitled to succeed in this
acton and my judgment will therefore be
absolution from the instance with costs.
Mr. tSchreiner, Q.C., for the appellant^ referred
io Sir Per, Maitlafid's Treaty (1846); Hertlets
CoviwerckU IVeatiat, (Vol. 9 page 106);
Straelvefi v. De Vrws (6 Sheil, 381); Theal's
History of Swtth Africa (1834-1864, pages 379
et sefi. He contended that the history of the
Griquas showed that they were a Mono-
gamous people who came originally from the
Colony where they were accustomed to be
married according to christian rites. When
the people left the colony, therefore the pre-
sumption would be that (failing any {Specific
written law among such people) they took with
them the common law— including tbe gtutu*
which chrit^tian marriage in their original
society conferred; including therefore com-
munity of property on marriage. This pre-
sumption is confirmed by every other fact of
33
MlHiDrj UMt w« Ilmow. Tbere isioetiwr
^""■9601, lor tteey ^r«K« iMiC • pure lepftniie
«>^vilbd«&»e(i stt^iooal ciutMis; bal ttie
IxiVbvtiem mixed rmoe imoliidimi half cMtes,
^ Sinthmm, ▼. CM^mi^ Oovermml (11
'^ W)l TIm niAitt point ia tliM mm thate.
fcwii tedetM Ufctia iB tl»e <miertion of oommnnity.
IMtfntU the Oofirt. liolds UmU there ia no
MAowuvilty tlie diiidrcii ocHildtCill rely upon
theeoilaci l^ikiieaLQre A.) whereby the father
nMhiailg^te ms % usufraeiiuuT in regard to
DnefeaiNn. 3«0y«««av. O^ m niml OrpJUm Cham-
im(?oord,p. 48).
Mr. Senile, Q.C., for the respondent.
Ite Ooaxi dlamlBBed the appeal with ooeta.
DeTUliera, G.J. : la order to snoeeed in thia
adioa ttie pWmtiff h«d to aatiafy the Ooori
Wevlbait our Imw of eomni unity of property
enrted wnoDg the Griquna before the annex-
alion of tbelr territory to thia colony. Thia
Oavtheabeen faTOured by Mr. Sehreiner with
a very faatereatiag diaeoaaion of the history of
CMqaa people and the gradual development
lawa and eoatoma, bat ttie diaeuaalon
naeh aaaiatanee in deeldfaig
eommaaity of property between
and wife waa reeogidaad by the tribe.
anrldeBee ia reiy ecaiiieting,
now analyalikg that
liaetiae to the Tiewthata iMdiiad
emmaaity did asdat in regard to hnd,
with thia diatiaetiea, that upea the death of
of the a p e wa ai the aanrlTer remained in
•f the property aa owner of eaa half
of the remaiaing halt If thia
be correct thea the phdntiir ia not entitled
the dUbadaat'tt lifetime to claim any
«rf the property, and the Magialrate waa
Tl^btia granting abaolutlon from the inftanco,
the burthen of proving full com-
ity of property, aare<.egaiaed in thia cdoay,
tiie phdntlff, and in the afaaeaee of
proof the Magiatrate'a judgment waa
The ai^wal muat be diamiaaed with
[Appellaau* Attom^s, Memra. Van Zyl k,
^aahiii6; Reepondent'a Attomeya, Meiare.
FairfMldge, Ardeme A Lawton.]
►. f 1807.
)Feb. Sad.
[BSB T. aA. TCXBACOO 00.
AMD uumKormK.
Piatciit rigfata — ^Aastgnment — Breach of
contraet — ^Interdiet—Rale nm.
8, mUred hUo cm agreement with L.
n ienms of irhiek S. acqmred the
pateni fights im S<nUk Africa of
eeriaim c^areitm-mMng maehkm qf
S. ihtrwfUr wader a further agree-
ment ceded hie rightt under the
original agreement to H, on behalf
of the T. Co. which was to be formed
to exploit the invention in South
Africa, This second agreemeni pro^
tfided that tn consideration of payment
of certain monejf in shares, and
certain salary and percentage of the
profits, 8. should give his services to
T.) and hand over all his stoch and
machines and ass^^ his patsni and
other rights in regard to the machine
toT.
Thereqfler S. prepared all the docu-
ments necessary for patenting the
invention in South Africa, and ob^
tained execution thereof by L., and
handed them to H. for completion.
The patent in the Cape Colony urns
obtained in the name of L., but S.
alleged that this was on the distinct,
understanding that L. should assign
the patent to petitioner or his assigns,
and S. consented that such assignment
should be made to the T. Co.
S. duly handed over all his machi-
nery, and gave his services for
several months, but received no
salary or shares. On the application
ofS.,
The Court granted a rule nisi, to
operate as an interim interdict,
restraining the assignment of the
patent rights f registered in L.'b
name J by It. to T, pending action to
be instOuted by petitioner.
On the return day the rule was made
absolute (omitting the words *^ pend-
ing action to be instituted by peti-
tioner '*J9 with leave to the T. Co. to
apply to the Court for the discharge
of the interdict.
Thia was an application to make absolute a
rule nisi granted on the 15th September, 18M,
upon the motion of Mr. Innee, Q.C., retumal)le
laat day of the November term (subaequently
extended), to operate meanwhile aa an interdict,
calling upon Frank James Ludington, aad the
South AMcBU Toliacco Company, to show cause
why the former should not be interdicted from
arsigniDg hi» leiten pftUat of tiM 17th June,
189€, to the latter, or to any one oibar than
petitioner, and why the officer in charfce of the
register of patents and proprietors should not be
restrained from registering such assignment,
pending action to be instituted by the petitioner ;
rule to be served personally on Lndington and
the company, aa well as on the oflioer in charge
of the register of patents and proprietors.
Mr. Innes, Q.C., for the applicant.
Mr. Searle, Q.C., for the respondent South
African Tobacco Gompan
No appearance was entered for Lndington.
There wis no formal return of a lenrloe upon
him in terms of the order, though a formalj
declaration by him was filed tlirough the.
attorney for the iSouth African Tobaooo Com-;
pany.
The original rule nUi was obtained upon the,
patrtion of William Schreiber, of Johannesburg,
whtoh was as follows :
1, That yonr petitioner is a rasident of
Johanaesbuig, in the South Afrioan Republic,
and has been residing there einoe 1887.
3.\Tliatyour petitioner has been brought up'
in the tobacco trade. '
8. That in 1894, yonr petitioner was carrying
on business in Jdhannesbnrg with his brother
Benig Muheiber, ondar the sfyle of W. H. Duke'
&Co.
4. That of date llth October, 1894, your
petitioner, as representing the said firm of W. S.'
Duke 5c Co., entered into an agreement with
one Frank James Ludington, acting for the
Lndington Ck>mpany of New Haren, Amerioa,
whereof the original is attached . marked A,
to which yonr petitioner or avee Isare to refer.
[This agreement provided . for the sale to
petitioner's firm (W. S, Duke k Co.) of two Lud-
ington cigarette-making machines ; petitioner's
firm to get the sole right of selling these
machines in South Africa and to be entitled ta
take out a patent (in ih^ naibe ol W. 8. Duke)'
for South Africa.]
5. That the jsaid agreement was duly carried
out and completed so far as the delivery of
the machines therein mentioned was con*
cemed and as regards the payment of the
purchase pirice.
i. That the attention of this Hononrable
Court is drawn to.j»ar«graph 8 of the agree-
ment, whereby the vendors thereunder agreed to
allow the purchasers to take out a patent {or
th^ machine, therein, n^entioned in their name.
7. that subse(|^uent to' the entering into of the
said agreement and the ac^iuisition • of the
machines therein mentioned your , petitioner
approached Messrs. Hsrtlaub ic Co., of Rotterdam,
and of date 25th llovember, 189p, your petitioner
Mteiad into with tlMi the agnammt mhmnot
a aopy is kerevoto attached nMrkadB, to wliioh
yov petHMMiflr cmves leave to.i«fer,
[This was an agreement to assign to H«ri-
laub Sc Co. or their nominees all petltioaor's
rights in respect of the letters patenti *e., of
the invention ; for a consideration whiob poii*
tioner acknowledges to have received].
8. That the invention therein referred to is
the matter In respect of which by daiton 8 of
the agreement first above named it was to be
permitted to W. 8. Dnke A Co. to take oat »
patent.
9. That at this time the firm of W.S. Dake
& Ca had been dissolved under an arrangement
by which %nter alia the maehipes, rights, and
interests mentioned in the said two agree*
ments had passed to your petitioner.
10. That the Honourable Court will obaenre
that the said Frank James Ludington oon-
ourred in the agreement second abovenanied
and agreed to reoogniee the same.
[This was by an aKtoraanMait in which
Ludington aoknowMt«i that the conteMta of
the agreamant were known to him tmd s»Te
his coMacrenoa.]
IL That the agmement seeond above Mnoed
was dniy rignad bf all the parties tfaoioto,
inslndlng. the said Frank JaaMS Loiington,
aad that the origlMa Is new in Heilaad ia the
hawk e< the saM Hartianh Jfc Oo. as lepre-
sentlngthe Booth Afriean T ehasso Oonp—y of
ruhaiiniilnifg a IMflk eoaspaay hav»(g its
domioile. In Hellnsd.
13. ThiK subsequently on the Mh Dooember.
1890, there was entered hito betweeo yonr
petHhmer and the said Hartlanb & Co. meting
fisr the said eompany the agreement hereon to
atlaehed* marked C, to whidi yonr petttioner
craves leave to refer. •*
18. That this Honourable Court will observe
Ihat by the said agreement your petitioner
agreed to give his exclusive services to the said
company for a stated period at a fixed
remunerktion, as also to make over to them for
the oonsideration therein mentioned (£1,000 in
fully paid-up shares), the entirety of his plant
and stock*in-trade, including the moehlnes as
aforementioned, aa also all patents or patent
rights.
14. By such patents or patent rights there
was intended to be covered the jmrtieular
patent referred to in agreements first and second
abovemlentioned.
16. That thereafter yonr petHloner enoaed to
be prepared the papers no ee o aary for the
patenting in hja MHBe of the InveOtleB vefened
36 .
to in ttM a^reemeBtB «foreiidd, miid did ^Ufn
tlw dve exeeuHon thereof by the said Fnmk
Jamee Lwlingtoii.
JC That thereafter the 'ea!d docutbenle were
bf hlm'ilandedf over to the said Hartiaub &'Co.,
in ovder that the completion of the l^tteta
patent might be arranged.'
17. ThAt, yoqr petitioner thereafter, gave
deUToiy . to the said company through .its
manager, one Huaheer, of Johannesburg, of the
goo^sand machinery, which by the annexure
third abovementioned he had agreed to make
oner, and he attaohs hereunto the receipt of tl^
i^d manager.
in Th%t no complaint ha^ been made as to
the., weight of the tohaeeo referred to in the.
said- reeeipi, and as ooneeras the snuff mill
therein naentiffned, tlufct yoor petitioner ordered
a new part fi^ov Oennany to anpply the defec-
titepfurt.
ISl Tluit yoar petitioner also entered Into the
sarriee of the said company In terms of the
■gvaemcnt third abovementiesied, and has in
every reepaci performed his part of the agree-
M. Thnt np to the preaani, although your
pe l itlw ie s baa handed ofer. the gooos and
afoeeanid, and has signed aU
iry doeomealfl falling to be- signed by ■:
bias, yea he hath reeeived no salary whatsoever,
aadno doHrery of any sharesi
SL That yonr petitioner hath aaade repeated
appliontiOD for payment of hia salary and for
the deliTcry of his shares, but hath obtained ao^
M ti a f ne ti on whaleoover, and he hath .been
sdHeed to take aellon to leelaim the interests,
ga-de, mud maehlnery aforesaid driirered by
him cH the faith of < the honourable perfor-
manee by the said oompany of Its engage-
menlB.
fS. Tfaa^the Invention a foresa id was patented .<
in Cape Town, in this colony, in the name of the
inventor, the said James Frank V^iogton, to
whom letters patent were issued on tb^lVth June
last; that a true copy of the speoiflcatlcm, to
whieh joor petitioner craves leave to refer, is
attadied marked D.
t3L That In taking out the patent In his own
name the mid Frank James Ludington did so
on the understanding that he should assign the
ssme to your petitioner or to hie assigns.
21. That the assignment from the said
Lndlngton to the said company as the intended
asBigna of yew petitioner has not yet gone
throoili the Register of Patents, although on
the faith of the dae perfomanee by the said
esmpaay . of Its undertakings your petitioner
agreed tliat emh -asaignmept could take place.
Si. That there is reason to believe that an
attensptmay bemadeat any moment to eom-
plete the said easement on the part of the
South African Tobacco Company.
36. That by^ reason of the total failure of the
said company to cany out its obligations
towards your petitioner there is grave reason
to fear that your petitioner may lose the
whofle of his valuable property and rights
aforessfid, niilees steps be taken to attach the
same pending the institution of proceedings
with 'a View to the recovery thereof.
27. That it is highly necessary that the apsign^
ment of the Baid letters patent from the said
Ludington to the said companv should
be prevented, pending the institution
of an actkm^'by your petitioner to
re^Mnrer his property and rightp, ebe your
petitioner may be greatly Injured and suffer the
total loss thereot
28. That the said Frank James Ludington is'
at present in London, England.
UI9, That your petitioner hath no reason to
fear ooUusion as between the said Frank James
Ludington and the said oompany, but is appre-
hensive that the said Frank James Ludington
has already or is about io assign eaid letters
patent to said South African Tobacco Company
in pursuance of the arrangements aforesaid.
The petitioner prayed for a rule nm to
operate as an interdict restraining the assign-
ment of the patent rights.
The following affidavit by G. Husheer, of
Johannesburg, was filed opposing the rule nisi
being made absolute.
1. I am tbe mapager in South Africa of
respondent— The South African Tobacco Com-
pany—a company incorporated in Rotterdam
(Holland) and having there its head office.
2. That I have read tbe petition of applicant.
3. That the agreement annexed to applica}|t*s
petition and marked S, was made by applicant
with respondents.
4. That respondent started business in
Johannesburg after the necessary buildings were
completed on the 1st day of July, 1896, and
applicant entered in respondents* service at the
same time.
6. That applicant until that period was
employed in a certain tobacco business carried
on under the name of W. S. Duke Jfc Co., Com-
mlssioner-etreet, Johannesburg, in which
buslttess he had an interest^ and he often told
deponent that he would carry on his business
forsolong^
i. That as soon as the company's buildings
were completed applicant delivered to deponent
the fpaods (after vaHmtioD) specified \p thf
sUfement annexed to 4lie order of ttie Oowt and
now taken in ezeouiioB aad the said goods haTe
never been offered for delirery before.
7. That a etatement of tbcie goods has been
sent to Rotterdam, for the purpose of making up
and signing the shares, as payment for the goodn,
aooording to valuation, whioh must be made in
shares.
8. That applioant knew that payment for the
goods and maohinery to be delivered by him
ooald not be made until after valuation of same
and delivery, and that the amount had been
stated to the direotors of respondent in Rotter-
dam, that he never complained about the delay
and never asked for the shares until a month
after the valuation had been rent to Rotterdam.
9. That applioant at the time the agreement
was made was indebted to the firm of Uartlaub
k Co., for the sum of £444 17s. 6d. with interest,
for goods delivered to him, in settlement
whereof he made an agreement with the said
firm entitling it for 12 (twelve) shares at 1,000
guilders each out of the shares coming to
applicant, and empowering the said firm to
take possession of these twelve shares in Rotter-
dam, as has been done.
10. That according to contract the applicant
for the amount of £2,868 7s. 7d. was
entitled to thirty- four shares of 1,000 guilders
each at £26 10b. cash as balance for the
amount of the valuation. That after
deduction of the ten shares mentioned
in 8 hereinbefore and the twelve
shares mentioned in 7 hereinbefore there
is a balance of twelve shares and £26 lOs.
which twelve shares only came in possession of
deponent on the 21st day of September, 1896,
when applicant was absent without leave.
11. That salary for the month of July, 1898,
during which month applioant entered the
service of respondent, was offered to him in the
month of August, 1898, and at that time he for
the first time claimed salary for the previous
month, which was then refused to him.
12 That applicant remained in the service of
the respondent until the 12th day of September,
1898, and at that time left the service of the
respondent without leave.
13. That applicant before that time miseon-
dncted himself in the highest degree and was
Very impertinent towards the dep<ment ; that
during business hours he was often to be found
in the business place of W. 8. Duke & Ca, whoso
business was done under the same firm and in
the same premises as at the time the agreement
mentioned in 8 hereinbefore was entered into ;
that during business hours the applioant ordered
tools and applieanoes oelonging to the respondent
far making right oertain maohinery for the firm of
W.S.D«]B»*OosaadhMbossiwotkiiHr toMsd in
favour of tiie sftid flim of W. 8. Duke U Co.
before, during, and after tlie basinets honia of
respondent in the busincfs plaoe of the said firm,
in contravention of the agreement mentkNiod
in 8 hereinbefore.
14. Ihat on account of the laet menlioBod In
13 hereinbefore, the deponent held it that the
applioant had left the eervioe of the reepoadofet
when he went to Cape Town without leavo, mmd
respondent only later found out that api^ieMSt
hud gone to that place with the intention to
institute an action against the respondent.
16. That the deponent is willing to pay snlaiy
to the applioant at £60 per month from the lat
June, 1898; howoror, he only entered ia ttie
service of the respondent In tiie mottth of Jnly,
and to pay salaix vnlU the 18th fioptombor,
1898, about which day he left the lervioe of
respondent without leare, aad fturther to fMiy
him 4 per cent of the net profits made hjr the
respondent freoi the date of starting bnsinans
until the Uth 8eptemher» 188«, to be paid m
soon as the aoooonts have been inspeoled wad
the profits have been fooMl, whioh will bo daao
as soon as possible: payment ol salary mmd
intpeotloB of respoadent's hooks smo heww IAIa
tendered to him and paymont of 4 per oenC •!
the profits, to bo made as soon as possible nod
the jnst amount oan bo atatod.
li. That whh respeot to tha agreemosU
annexed to applicant's petitian maffked A« Hm
applioant never fulfilled the eonditlon of tida
agreementi and the same therefore beoaae mUI
and void.
17. That the applicant wont to Hottadana
and made the agreement annexed tonppUonat^a
petition, marked B, with the firm of Uartlaiih $l
Ca, and o ded all his rights to the said finu«
who is still the holder of the said richts.
18. That a portion of the documents and
oorrespondenoe relatiag to these traaflaoti«>iia
are in Rotterdam.
19. That the respondent, na soon as ho
received notice of this action and of the aotiosi
instituted at Cape Town, wrote to RoUerdam
for ihe said documents and eorrespondeaoe
and for instructions from the respondeAi's
direotors, and gave instructions to get copies of
the documents served by the respondent in
Cape Town which copies have been reoaiTed
yesterday, but the dooomenti, oorrespondenoe
and instmctions cannot be expected within »ix
Weeks at least.
20. That the respondent company never tried
nor had the intention to make away with muy
of the goods and machinery taken in exeoutloii
by the messenger, nor to make away to aell,
or to in any other mannermftke away witli
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^ViU««t
k
Wtwm y^mn of iU bari*
nlMiriK, for wjiieh be pftjg
«l&Mt tlKe resiMMMbflllMM »
in Jjhom ic i bfg •! thm
by
itk Um Cirooil Couii ttl
ft|i|iliMtioD the
Interdleft eosid toiUowtd
rttk wpf •€
him te aeoor*
mlAO ftied a deeteimtioB by Fmak
iMMmlntfaglfln, of Wolertmiy, Oonneotieal,
teth«fMl«d8taftM,liiT«i«or, m followi:
rigbta lo mpMt of Ibe •bovt*
for «1m wlMle <^ bo^th
lo ood no l o¥n bi d io llMSit.
of BoMordoH, oodar tiM foJloir*
A Mr. WftUfaw 8dttoib«r
to Iko 9Mr IW* wMi BM, iir Ihe jiUe
«o he void iir the auMbioe
rigMi iir ths Aoofth
Tko ogiwmol liulwuo oi
Mr. B d M o M u r wos to poy for two
io tfaoy«nr MM^oNhwIm Im OPooMooi
potooiriffhliw TbeioidMr.golttoiber
modilM, bol wm oooMt to poy
r, ood tile oKioeoMOt wof ot as «od.
mtn. Hoftioob k Oo.
tor o Moood ouMhioe, I ogrMd to oHow
to iMivo tho potent righte, ood I om
beliofo tbot tbe loid WiiilMi
odiotooeootHMtwitii tiM Mid
HoHloob & Co^ to Mrigo tkem tiM
rigJMto oflwoioid, wiiioh wortract Isdoled
Norember, iWf.
lod beiieTo thot Mewn.
it Oo. iMd odvoooed tbe mooey to poy
Miolnt mortiloe. I oeosidered the ogioe-
Willi Mr. Scbrelber pwraooollf ot oo eod,
I eot oi o d ioto the oew anroofeoieot wiMi
Bortloob & Co. ooder tlie above
oppHeooi's refdyiag atfidoTit set
I kore read tbe declaratioD of Frank
Iiodi«gtoo, ood In replj thereto etoto
Mo (larf fc^t co'e) etoteueot thot he eoo-
*he eoBtroet with om, dated llthOetober,
[, to ottoily defv««4 of troth, as will oppeor
toiteiw oddfeeeed to loe re epeettoely
SbtJSeptombor, 18«,aodaOlhOelober, 19M,
of whioli ooe hofoto eooeTed m o rh ed A.
Thot the toil moehioe waa pold tor by ie by
two elf ht diofte thrai«h the Afiiaao BoBbli^
Oorporotioo here io Morah. IWk thot faiiy
nioe neof the betore I had aoy traoaootloo with
the Sooth Afrieoo Tobooeo GkNopooy.
Thot the leoQod aumhioe waa paid tor w$^
aeeooat by the Booth Alrloao lobooao Ooai*
pooy Io tonoa of Hie asieeaMOt beteraeoL Hia
a«ki Sooth AfHoao Toboeeo Oompooy . ood
Myaelf, after whieh I oeded my righhi to the
Bol dDompaoy tor dl,€00 aod a thiee yearii eogage-
-■•eoti at a «dary oif dfiO per meoth ood 4 per
ee^tk of tlie oet proAte ot the oompooy.
Ue further alleged toot he hod not left the
eotopoay'i aerriee till the Siet September, IMI,
wheo he reoeived wntleo inatmetiooa from the
mapoger of the oompooy to do to ; aod deoled
hoviag had aoythtof further to do with Bohe
k Oa after eateriog T/i eerrlee except to T/e
totermi.
Thot the High Court of the Traosvool did
pot refoae the applieatioo for oor toterdlet bat
grooied it^-tboogh petitioner had to pay tlie
ooiti, as the Court held thot the Johaooeeburg
Bpeeiol JodieiolCommlmiooer who grouted the
proTleloool order hod oo power to do ao.
Mr. luoes, CO, now moved thot the rule be
omdeobflotato,
Mr. Seorle, Q.C., tor toe reapoodeot: Cleorly
oo nilo should now be gnaM to
rsatrato toe aaslgoment The applicaat ioteods
to briog ao aotloo in the Troosva*! Court for
damages f6r breach of oontraet He oould not
In tois Court get reaUutio in io^^yrwM
oolses he proves tout there has beeo ftoud or
mietoke ; nor eoo he get both the remedy here
1^ ruUtuti^ ood io the Transvaal by damages
for the breaoh.
If r. lUnes replied.
The rule was made absolute (expunging
eertoin words) with eoefs.
The Chief Jostioe soid : Upoo toe Informo-
tloo beftne tbe Court, It appeati to
be clear that toe rule should be made
abeoluto If there had been a tender on toe
port of tbe respondeote to deliver
the shores, which under the contract toay had
boood themselves to deliver, I should hove re-
forndtoowkethe rule obeoiute. Bui toe de*
livery of the sh ar m see ms to me soeh ao
esseotiol port of the contract tiat there Is
almost a total faUore of toe ooosiderotloo if
these shoree are not delivered, and if so toen
the rsspoodeot Lndlngtoo would oot be eotitled
to teaostor to the reepoodeots, the Souto Afrieoo
Tobooeo Compooy, the patents which had been
regtstsved in tois colooy. I toiok,
howeeer, toot that portico of the role
iodudlBg the words» **peoding oo aetioo
V
S8
taWte«liia««d tof tM fMRkNier " <niglit «• be
oMitMf *lfte«»«toe I <1» «l>i tee what M^e^ Iheri)
ow be in ^e petitioner 'bringinft »ta %etK* in
thiB Oonri. IF he auoeeedtf fn^ctyMnlng dami^jiM
in ihe TrmnsTtttf H?ourl Ihen^ olMirli^ lie wonid
nol be'entHied Ir^*' ooBtinwtt<)fc%f -the rale, •iM
lev««'t^ii8ft«"fciiereinre M be • wAetrcd tb Hhe re-
■pcMriJ^iite'^bnte «li« Me dlecAarsed, m, fbr •
in«Mno«;«:thei^peMttnterfi<mM'tiit fOlf time
tMdefihtaeelinTei ^ if ^dnitoft^tf ^lioutd be"*-
obtnin^bT* tbe "ii^^ltdAit w- the Tmnsma!
Geort. A#<td theDoirtb tif thh *«|)plf<^t^4(n, it*
feemB to me4hmt i^tet^Mmobb<3ofAipkBf- ought to'
pay them. L«dingtofi iBoMif a tbrnAl defendant.
It fs^not quite dUte^ lAnA h(* ha« b^n-* piftrconally
Benred, and in any eati^lie alte"woald hare the
right to apf»ly to hare UiO'-roK. fietndde. Tfae^
Court will nbw make the raleMMrftfteiomitCing
the words spending an action to *be instltifted
by the petitioner," the respondents, the de- '
fendant eompany, to pny the applicant^! costs;
«[ Applicant's ' Att<.mey*S' Messrs. Walker &
Jao^bsohn; ReBjiondetil^' ' Attohiey, Gas.
TfoWip-J.- -
SUPREME COUKT.
J ' ; .. « :
[Before the B{ght Hon. Sir J. H. dk Villisbs,
itC .K^.^:Mc^. (6bief Justice). Hon. Mr.
. ', justice Buc^^Aii, apd Hon. Mr. Justice
MaaspobpJ , .
B. V. STUUBMAN.
) 1897.
J Feb. 3rd.
jMc Jrstioe Maftsdorp stated that a case had
come before him as Judge of tbe week in whi^h
the ]ie6i4ent M^gisttaie of Willowmore* had
cofivicted one BtuunpMt 9f having ooj»t^avened
section 28 9f Act No. 28 of 1888, by having, in
coaneotioA' with ot)ierA attempted to break out
of the Willowmore gaol Stuurman plei^ed not
guilty, was ^nd gnilty, and. sentenced io three
months; hard. . labour. In bis <Mr. Justice
Maasdorp's) i opinioUt tberis . was not sufficient
evidence^ to justifyrth«> seik^eBoe* wbloh uuist
tlierefore ln^ quas^ied. .
M
f ''1867
BA8S0N V. VAN ZYU . J p^^ 3^
M*gifi[tVate*s Conrt — Simmons — ' Ac--
count — ^Costs.
The owissiou io delit>er with a turn*
mon$ in a cipUeiMe in a MagiMtrai^i
"Court, a full dccoukt relating to- Ae
claim U not fatal in cake such
.* ^MtitffW has not prejudiced /Je 4^/^'
d^miiHkU,.d^§m:e. ^
Tkfi pUudijf idUged in hie memmmu
.. Hkei 1*0 4efeudaM hHd, for-tfahuMe
coniideHUioii, promised to pdy a deht
'owing hif theplatnHffto A., oirf l^/^,^^
the debt uot, ia»i^g leen sopaid^ the ,
plaiHtif' juourredwui paid'cerU»m
. . leotte a Ji dejkmdimg^the eudiom krmigkt
'^against him far ^deht hy .A-.
H^ld that these allegations disclosed
nogro uud of joction ' by the plavtHf
agqis^^the defetidqi^ to re^(n)er th^
amount iif.c^stseo^p^d* :
.This waaian appeal fram ihe 4eaMo« oM^m'
Aotteg.BcoideAt Magiaimta of Flquitbeicg, !■
av^dotiitt (fop^hb i#oov«ry of AiA Uts. 8d.) m
whteh the p r ewm t app^Uant was plaiatlft
The sumttOM As .the Couti Moteiaad fevo
oouDte, the plahntlff elslmmg as ftkUasrs «
1. The .anm of etoveo pounds Hve shilliis^a
stariiag Mag balMwe for the work and htevr-
o€Ae1»tehi*i<f perfasmedlorthii defondaii* sii.
his rtqnst dnstng ikmmmnihm et Movsosber awl
DeoeMbei; MS, aadi JaMiary and February,
18Mi and whM said flnbunft of £11 6s.'defM^
dnoi undertook: nmd pramited .to pny one
AbAham J. Van dec Mer^ie, whowasnoMttor
oCplhintiff for ••ifattn^ sum, but laUed ao t» dc^
2. Th4sum^a8«..:84&^^iBgthetaxedoo8fta
paid by plaintiff to thaimsleeB of tiie inaolfesU
estate of tha suid^Abrahaaft J. van der Mer«M In
July, I8i«^ iBnnrffad4^' them in veeoverflig froua
the Resent pteiutifl the4rakn et-Mk is. as above
mentioned.
The follawing ttooouutr was annexed to ihe
J. JlVAHBYIi
Dr. to R. J. «. BAflflON.
To f^ork and labour dpne^urtng
monttis of ¥roveWkl)ei> ^and
December, 1895, and January
and Febtuary, 1896 •••
Received on account by cash
£69 If 6
48 7 «
§
£11 6 O
6 8 8
•BalpniQe * ; .«. . •..
Xo ooate fif suit, iMolv^n^t SstaAe,
A, Ji ?an{ der Merwe ▼♦ .B. J. Ci.
The dufendant before pleadhig raiasd the
MIowtng exoeptionse . '
^.ThinsundionsiabadiaBd vagl»in law
ebows nolground of action.
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I
«»
In tkai dfttoduit wm mot lerred*
pt9p&t mpT 0f •ooomii «poa w>|iieli Ihe dsusBd
it fiwdeJ, tU. t '
' f «) TImi H ts not siatod-what work fttid
labour has been performed bf plaintiff.
[b) What wages tbb plaintiff claims and
what agreement there Was between* the plaintiff
and defendant as to wjges per day, week, or
(c) That no properly specified account has
been served on defendant showing I'Ow plaintiff
arrived at the snm of £59 12b. 6a. due for work
and laboar lees £4S 7e. 6d. as received on
account by cash so as to arrive at ttie balance
of £11 6fl.
•
id) That it is net properly and distinctly*
•t«ted in tha Moond g^ in ^« f upaq^Mifl how
plaintiff acriTadat the amount ;of £6 8s. M.,
taxed costs paid« Uow thafe costs were in-
curred, l>y whom they were taxed« a«wi that
defendant was not^wnred with a proper aoqount
of same, or copy of bill of ,Q0s4a taxed.
The BowilQat' M AsMvata upbeM thii attep-
tmoa ior tha ioUowing lanaBOS:
la tiiia oaae, hafoie. pleading, defendant's
agent ezoepted to the sumoaaas torn the ground
ibawvaativrthX :in«iiltiffs altoniBy in reply
mer^ <|iioM iMf«MO» amd Omiimig {HM.
a Act)r which giaea a Copy of, the plainta aa
hriddownlnsefsilCQllNSohednleOof Act a&of
, imfataii»gth«l'aahavhad Mtawdtha lerm
al plAhat Tthotaili aelrtotth his suaMaana.is
gaod tmd aufiBcknt, also: thht tha> aaoanntsi
annaxcdnM'aufieiently coiplieit.
It la nat asy aaslain ta aneoBiage litvolans
meap t ia n a or to mtim^wlm lham,jaalesa in my
apinion there nre seMly gand ]gropnd)i for their
being raised, but in this inatawflo atienaajiyatng
the plaint la, the snmmoack i(Q-\^ sufficient for
jturp9$c of pkadingt the .a^ipoounti annexed dor
not in my opinioii set up ei^^Ulif enough thei
feal causa of action in order to frame adefenpe.
Van Zjl, in his. JMd^i4U Practice- of South
J/ricth states, p. 22 : The summons should set
forth hi iafly, hut olearly the nature and cause of
action or complaint, and the relief sought hy
plnintifffSo as to leave the defendant no foom
for doubt as to what is meant o^ dem^h^ed er
required of him.
Also on p. 29, Tan Zyl says : Jt is 'true . that
the ol^eet of a summons is to bring the defen-
dant into court at as little expense as pd6sit>IeJ
andlbtt if he ifUentfitd defe»f the ac^tlon hd
Witt gat fie' informsttieU from 'plhiMiff's
deetatatlctt to be sSHed on Mm'afterwliitit,*but
arfeu he has ftill %Ao>ii^ledge'^f .&e l^lainUff^i
eialin, ha la often nftaUe toMie advice "od^ the
aa fa ''whether he can defend or m^"
I am aware: that the dhapter ahciv qnotad
bears aponijiMfioiat practice <n the-thifa Higher
Oonits, but I take it that the prineM« •>»>
applhlB to smnmonaea in inferior Oaurts^ and in
tfanse Courts it ii tbe rate to set forth fnlly in
the Buaimonstiie whole tioand of acthw, ; at' all
areata the aceoont required i^ Bale 1% eahedale
» of tha R. M. Oouri Act shcnid ha sufficiently
expMcit 'tio supply the place of the phpnfeiff's
declaration in the • Higher Ootats. In my
orinicn both acooants- aae vagna and^jlo not
disclose a cause of action in such manner aa to
be able to establish a defence. I tlierefore
upheld the exception wHh ooste»
Against this ded^ian the appeal wda now
brought.
Mr. McGregor, for the appellant: The
summons is mainly in- the form of plaint
in Schedule C, Act 20 of 1866, and therefore is
as dear as need he. The account served with
the summons is not necessary if it is clear from
the words of the summons what the claim is.
The account annexed is not full— but need not
have been annexed at alL Oa count I. the
Magistrate should have heard the parties
SI Iter V. Brits (7 E.D.C., 151), As to count
II —unless it can be asbumed that plaintiff was
the mandatory of defendant, we must abandon
it.
The Court intimated that it wished to hear
counsel for the respond^t on count I. only.
Mr. Buchanan, for the respondent: The whole
point !s whether the summons is clear. Now
Rule 10 Schedule B, Act 20 of 1856, provides that
the account shall be served wfth the summons ;
and the- Magistrate can only ezcuaa an insuffi-
cieuoy.i% thi acepuat if the defendant is not
prejwUced-in.hlasd«(ence. The account served
in this case does not take the summons any
further Incept as to tl^e amount. The defen-
dant is' set'lotMy pM|udic^'iU Mt defence not
knowhig #haf citse to^te^ the nde of pro-
cedure in the Resident Ifa^liftrate'a Court
differs from that in the Supreme Court, where
the issues are developed on the pleadings.
Do-jVline's; CiJ.: If the' omfeslon to
deliv^i^a co|*y^f an account with the itommens
is ndt'fataTHh otsb such bmissiott hd^ neit'hre;
judlced -the tiefendaht in hfs dcAsfi^, 'Aen
/Mt^ th^' fact that ah account which *#!»' in
fact delivered was not quite oomptst^ w^N^not
undei' similar circumstances he fitthf 'flP» Ihe
Bummohs. The account dcHversd *^ in the
present dase is fairly complete, bht ^eVcAPif it
were otherwise, I am satisfied that the^delcMcKant
'has in no way been prejudiced Hn" his*de0enee by
reason of the form of the aecounti fhe excep-
' lion to the flrM count di^t ^t'to 4ate been
suttnincd, andtothls extent Ihe appeal aught
40
toi be aHowwL As lo the leeoMt exmpkkmi it
WM p repc rl y swIaiBed bj the Megiitrate The
eomt lo whieh esoeplioB was eo taken ellegee,
in efleet, that tiie defeadavt had for TahmMe
eouldei«tioii fnomieed to paj a debt cHviag bj
the phOaMff to a third paHy, that the debt was
aot 00 paid, aad that the plaintiff incinrrad and
paid eertain eoete in defending nn notion
bw n ght against him by snob third party for
the debt Tiiese aliegativns clearly disclose no
gronnd lor nn notion to reoorer the amount of
tfao costs so paid from the defendant.
Their lordships concnrred.
[Appelhint s Attorneys, Mesvi. Wniker &
Jnooheohn; Bespondent's Attorneys, Messrs.
Vna Zyl & Buissinn^.]
LOUW V. AITDUWS.
Pledge — Dclircry — Attachment — Pos
I 1897.
{Feb. atrd.
A ctrUnn horse belonging to a judg-
ment debtor was found by the Messen"
get ofdke Court on a farm occupied
bff such debtor runmng with her other
cattUy and was aUached in execution
of the judgment.
Before such attachment the horse
had been pledged by her in security
of a debt due to the pledgee and
delivered to ihe pledgee^ s agent, and
by him left in the poesessiom of the
dt^ftor^s minor son^ who liued wiM
his mother and was entirely under
her control;
Held, on appeal in an interpleader
sukf thai the aUachmeni was valid as
e^gaimst the pledyee.
This was an appeal from the decision of the
Aotiag Resident Mngistmte Albert, (Bnrgfaers-
ijbrp), in an interplender snit brought on Mh
Deoember, 1896, in which the respondent
dntesd as his property a eertain mars wliich
had been nttnobed by the messenger of the
Oonrt under a writ oi execution issued after an
notion brought by the pro as n t nppellaat,
Kntrina Louw, ngnlnst one Anna Louw, of
YaaUmnk.
The oridenee of the respeadent before tlie
Besidemt Mngistmte was to the effieet that
after Annn Louw had lost a case with one
she nsked the rsfpondent to pny the
judgment debt and oost*. Tlrfs lie did aftor
getting security under a w iitmi agreenMBt
(marlied A, ns referred to by the Aeting Resi-
dent Magistrate in hie ''Bensoos*') purporting
to pledge with him oertnin six horses (amongst
which was the chestnut mare in di^mte^ then
running on the farm Yaalbank In this agree-
ment Mrs. Anna Louw undertook to deltTer the
horses to Hans Louw, as agent for the respon-
dent, **to hold as the respondenVs sole and
univensd property/* Hans Louw was one oi
the parties to the agreement, and therein under-
took in accepting the agency to hold the horses
at respondent's sole disposnl to herd them, nnd
not to remove them from Vaalbank withoni
respondent's permission.
The respondent stnted that his agent neelTod
ddiTery of the hones on his behalf ; aad tint
he himself took sll the horses away from Yanl-
liank except the chestnut mare, whidi wan
astray at the time.
The respondent further stnted that at the
time the agreement wns made the mares were
only hnndedovur as security, but timt they wen
to remain his pro p erty ftbeolutely (and irre-
spective of tiieir Talne) in the event of the
costs not being pnid.
Philip Louw (son of Annn Louw) stntsd thni
after thehorses were delivered to Hans Lomr
the Istter delivered them to him to tnke enreof
and returned to Burghersdorp. The eheetnut
mare remained nt VnalbanlE, under his wwn
charge on behalf of Mr. Andrews, iimnlng wMi
the other enttle on the farm. He had AlwiqrB
formerly looked after it on behnlf of hin
mother, Anna Louw. He himeelf wns 19 y e nsn
of nge, nnd entirely under Ms BMither's onm
nnd oootroL Hereoeived no nayment for look*
ing after the horses;
The Messenger of the Court stated that ho
seised the mare In execution whHe running on
the farm Yaalbank; the chestnut mare was
claimed by Philip as his own property. No one
said it belonged to Andrews, the latter had, n
few days eaiiier, asked him to go to Yaalbank
and bring in the mares belonging to him and
running there.
The Acting Resident Magistrate declared the
mare to be not executable for the foUowIng
I believe that the facts proved In this
That the chestnut mare in di^n^te was the
one mentioned in agreensant macked A and
was bona fde handed over and deliveind to Mr.
Andrews by Anna Louw throngh the agent
mentioned— Hans Louw— nnd specially mp^
poiated lor that purpose inthafi ngrsement nnd
1
t\
J
\\
I!
I
:i
I
-1
I
u
1
41
\
/
m nteiaed lyy RamB I^cvmw^a lierd m Mr.
^■dnm' proiMrty, tlMfrefov« virtuAllr ia the
PMiikn oi Mr. Andrews «ntU seised bj (he
^<kf iBMwmgur. Tbe ii»«re was delirerad at
TuniMkfnitlisant ooemsion referred to in the
nmiudsiilMeqmenUy gn^*^^ «t PMidenver-
fiMiwUlherPklUpweiit tofetehitata)ftterdst«
ti\iriig H to Bwr^ieradorp for Mr. Andrews,
vhMihideiMiiy-mefleeiftSer seised It at YanU
b«k. NotwUlwUKBdins tbe fact that iha
etiteee ia itesk mad imsatlsfineloiy and ihe
■g w—iint smblsoovB* as will be seen, I am
(wnned ihsot tlie trmnssctioii was hona-^de
Mdnoim eokMmMe one. It will be seen that
the da^sty- m sia e ageir wsa infonsed by Mr.
Aa^evi tbmi tAkore were certain maree at
Tmlbask, whielfc l&e desired the deputy*
ifaooild brins in for lum. It U troe
only t h r e e dsys before the writ was
The tvsiiaseiicNi might have been
more peihlie snd is this respect the vase
la wesk« H ow e ver I sin eoavinoed of the hantk-
ftim Iheicol, asd ihst justice has been done, the
reootd asd ansexuren apeak for themselves.
The tiasaanlles ia aoboeqiiently oonfirmed as
win be seen, asd the intestion of the oootraet-
is8 psrUea whes entering into the agreement is
Mr. Sehieiner, Q.C., for the appellant: The
in this ease depends largely cm the
facta Beattie v. FenneU (6 J., 37)
that the onus in interpleader suits lies on
See also Ikre v. Cohnial
i^J^ 19X In the present case the
not in the p o ss es si on of the claimant
mt all. There must be delivery to the pledgee
faiKsrelf or his agents, and there must be reten-
of the possession.
Mr. Orahsm, for the respondent: The trans-
b tm a j ide nne. Haas Louw
desrly was the appointed agent of the pledgee,
desrly stated he accepted Andrews* delivery
the purpose of the pledge, and appointed
the herd then on the pledgor's farm to look
sf fter the cattle lor him. This was the most
eowenient means of delivery. Paffne v. YaUs
(9 Jots, 494) dlifers from ihe present case in
the holder there, did not remain the
At of the pledgor. Bat there is nothing
to show that Hans Louw or Philip
Tcmsiiied the servant of the pledgor. Bee
IV. IT. BamM v. PoffUer, Son 4* JkTeDmald
(11 VoL the Report 189(», page 135). The agent
ii ikm erne wm a relstlon of the pledgor, but
he wm mppoimimd for the spedfio purpose of
neehiag dBUrerym
The Obimf Juatioe : Did Hans teU Andrews
lk§t he bmd mppoinUsd Phihp to look after the
Mr. Qraham : There is no evidence that he
did.
The appeal was allowed with costs.
De Villiers, C. J. : The contraet between the
plaintiff and Anna Louw was in substance a
contract of pledge and not of sale. There was
a right to purchase under certain cirovmstances,
but at the time when the horse was attached
that right had not been exercised. The horse
was one of several which had been delivered to
the plaintiff as security for a sum of money
advanced by him to Anna Louw, These horses
were duly delivered to the plaintiff's agents
Hans Louw, and if they had remained In the
agent's possession the pledge would have
remained in force. But Hans Louw delivered
the horses to his younger brother Philip, the
debtor's minor son, who lived with her and was
entirely under her control. Evidence was given
to the effect that the horses were given to
Philip to take care of, and if he had been an
independent herd his possession might fairly
be held to be the possession of the plaintiff's
agent. But not only was Philip entirely under
the control of his mother but the horse in ques-
tion was by him allowed to run together
with his mother's horses and when attached
was found by tbe messenger on a farm
in her possession. If the general principle is to
be maintained that a pledgee loses his pre-
ference if tbe pledgor obtains possession of the
articles pledged, the principle should certainly
apply to a case like the present where the
pledgor's minor son, who is entirely under her
control, obtained possession of the pledged
horse and allowed it to run on her farm with
her cattle. The appeal must be allowed, with
costs in this Court and in the Court below.
Buchanan, J., concunred: The effect of the
evidence is that the pledgor retained possession
and control of the property pledged.
Maasdorp, J., concurred.
Appeal allowed accordingly with costs.
[Appellant's Attorneys, Messrs. Walker k
Jacobsohn; Bespondent's Attorneys, Messrs.
Fairbridge, Arderne & Law ton.]
4,^
SUPREME COURT-
[Before the Right Hon. 8ir J. H. db Tilliebb,
P.O., K.O.M.G. (Chief Jaetioe), Hon. Mr.
Jaetice Buchanan, and Hon. Mr. Jtutiee
Maabdobp.]
PROVISIONAL ROLL.
BBTNOLDS V. OAK.
I 1897.
^Feb. 4th.
Mr. Buohanan apolied for the ftoal adjudica-
tion of the defendant's estate. The provisional
order was granted January 26 last.
Qranted.
TBUBBB y. LAKAB.
Mr. Jones applied for proTisional sentence on
two mortf^age bonds, one for £26 with interest
at 8 per cent, from March 1, 1896, and the other
for £10 with interest at the same rate from
Norember 6, 1896, and aslied that the property
specially hypothecated be declared executable.
Granted.
Ih re O. A. P. BA0HME80H.
Mr. Buchanan applied for the discharge of the
insdrent Qeorge Albert Paul Bachmeeob, under
section 106 of Ordinance No. 6 of 18i3.
Qranted.
GENERAL MOTIONS.
IN TOS HATTBB OF THE MINOB L0UB8EB.
Mr. Jones moved for authority to the Master
to pay the sum of £46 per annum for four
years out of the funds in his hands belonging
to the minor fo: the latter*8 maintenance and
education.
Granted.
IN THE MATTEB OF THE MINCES VAN NIEKEBK.
Mr. Maskew moved for authority to the
father to raise a sum of £160 on mortgage of
certain landed property for the purpose of re-
storing buildings destroyed by fire.
Granted.
LAZABU8 V. LEWIS ; LEWIS V. LAZABUS.
Costs — Interdict.
These were a motion and cross-motion for the
costs of certain proceedings heard in the
Supreme Oourt on the 19th and 23rd November
last (6 Sheil, 429).
Mr. Schreiner. Q.O., appeared for the appli-
cant in the motion and the respondent in the
cross-motion ; Mr. Searle, Q.O.. appeared for the
respondent in the motion and the appltoant in
the cros '-motion.
After argument,
The Ohief Justice gave judgment. He mid :
All the proceedings in this case were aet in
motion by the respondent, and it was owing to
him that the costs were incurred. He
moved to interdict the Registrar of Deeds
from registering the trade mark of Lasanu.
That was fully discussed in court, and many
affidavits were filed. Probably it ?Bay now
be found that many of theee affidavits were not
necessary, but, at the same time, Lassmg was
bound to be prepared with his affidavits, con-
sidering that Lewis in his affidavits had gone
into the whole merits of the case. The
Registrar of Deeds has decided the matter
entirely in favour of LaEarus, and from his
judgment there is no appeal. Lewis therefore
has failed on every point, and he therefore Is
the one who must pay the costs upon every
principle which regulate the granting of ooete.
The application of Lasams must be granted,
with costs, and the cross-application be dis-
missed, with ooste.
[Applicant's Attorney, G. M. Walker; Re*
spondent's Attorneys, Messrs. Findlay & Tait. )
THB PETITION OF THB METBOPOLITAN AND
BUBUBBAN BAILWAY CX)MPANT.
Mr. Searle moved for an order for
the attachment €ui fniUkindam f%r%sdi4fiicmtm
of two locomotives belonging to John Fowler k
Oo,t for the purpose of an action to be instituted
against them by the petitioners.
The order was granted, with leave to sue by
edictal citation, returnable on the first day of
next term, personal service to be eifected.
IN BBTATE OAK.
Mr. Buchanan applied for the appointment of
a provisional trustee in this estate, with poweis
to sell the perishables and live*stook.
Granted.
WINDLHT v. FAVBB,
i 1897.
f Feb. 4th.
British Becbuanalaod Annexation Act,
1895 " Magistrate's Coart— Pend-
ing causes — Postponed caae — Juris-
diction — Power of Attorney —
Resident Magistrate's Oourt — Sub-
stitution Supreme Court.
Before the annexation of British
Bechuanaland the plaintiff sued the
43
dtfoidant im a ReMeni Magistrate's
Court ef thai territory on a pro-
missory note which was produced as
evidence at the trial.
7%« ca*e teas postponed to enable the
defendaMt to produce, evidence for the
defence^ to the effect that the pro-
missory note had been paid.
After the anmexatioH the ease was
caUed on but he/ore a different
Magistrate f and^ on exception taken ^
he held that he had no jurisdiction
and that the action must commence
de novo.
Held, on appeal, that although the
Magistrate was not hound to accept
as evidence any oral evidence pre-
viously tahen he/ore another Magis-
trate, yet as the promissory note had
been produced and the defence was
paymeuty he ought to have called on
the defendant to produce evidence
in support of the defence.
This waa an appeal from the deoi»ion of the
ResiJent Magistrate, Gordonia.
The appellaDt prior to the annezation of
British BechuanalaDd to the Colony, sued the
respondent in the Resident Magistrate's Court,
Oerdonia, upon a promissory note for £59 fis. 6d.
The case was partly heard, and Ihe re8ix>ndent
obtained a postponement of the case for the
porpoae of obtaining witnesses to prove that the
amount due on the noie had been paid. Before
postponement the note had been produced and
filed with the records. Before the case came on
again for bearing the territory had been
annexed to the colony, and a new Magistrate
had been appointed. On the case coming on
sgain for hearing, reapondent's agent rais(d an
exoeption to the Reeident Magistrate's proceed-
ing with the matter, urging that the case should
ia Tiew of all the eircumstanoee be eommenoed
ien^ro.
Thia exoeptioa was upheld by the Resident
Magistrate, and he refused to proceed with the
ease, diamiaaiDg the aetion.
Against this the appeal was now made
Mr. Searle, Q.C., for the appellant.
Mr. Graliam, for the respendent, stated that
the Registrar had refused to accept the power
giTen to appear in thia Coort, by the attorney.
The tatter's power was given to him to appear
in the Reaident Magistrate's Court, which he
4i4. The power contained the usual clause giving
powers of substitution, but it was entitled *' In
the Resident Magistiate's Court." The Regis-
trar held that it applied only to the proceedings
in the Resident Magistrate's Court and gave
the attorney no power to substitute anyone to
appear in the Supreme Ci»urt.
The Chief Justice : The Registrar was quite
right in refusing to accept this informal power.
Bei^g headed 'In the Resident Magistrate's
Court " the power only applies to proceedings in
that Court. But it will be better to proceed if
the parties will consent,
Mr. Searle having ooosented, the informality
waa waived with the permission of the Court.
Mr, Graham then took the objection that the
appeal was not lodged within the proper time.
It was not as a faet noted till thirty days after
iudgment instead of by next Court day. The
caae was partly beard before annexation— the
judgment was given after. Under Act 41 of
1895, the Resident Magistrate's Rules of Court
would apply. It ia true that in Smith v. JHnto
(Buchanan 68, page 105) the Court extended the
time for appeal. Rut the Rule of Court is Y%ry
explicit, (S3rd Rule, Fohedule B, Act 20 of 1864».;
The Chief Justice : When did your client get
notice of intention to appeal ? If Mr. Searle
formally applies we will allow the appeal to be
heard even now, on the ground that the parties
'may well have believed that the old Act
applied ; the matter having gone so far before
the annexation. The notice was given within
the longer period allowed before annexation.
Mr. Searle then formally applied accord-
ingly i Ai^<l leave was granted to proceed.
Mr. Searle referred to section IJ, Act 41 of
1896 ; and Will v. Hvmphreys (6 Shell, 5) ; and
continued : Act 20 of 1856 makes special pro-
vision as to criminal cases ; where the case is
remitted the Act is carefnl to show that it is
the Court, not the individual magistrate, which
is of importance. But there is no provision as
to civil proceedings. Still the Resident Magis-
trate had a right to proceed with the case as
he found it. He ought not to begin de novo;
he could go on with the record. The note was
part of the record. The signature was not
denied.
Mr. Graham: The Resident Magistrate
eould not give judgment on evidence part heard
by another Resident Magistrate. The Resident
Magistrate had no legal evidence before him on
which to give judgment.
De Villiers, C.J. : This case, it appears, came
on for trial befoie a Magistrate of British
Bechuanaland before the annexation of that
territory. It was an action on a promissory
note which was produced at the trial and the
case was postponed to enable t^e defendant io
4A
produce evidence in rapport of his defence thnt
the note had been paid. After the annexation
the case was called on but before a different
Magistrate and the exception was taken that
the case must commence de noto. The Mains-
trate upheld the exception on the ground that
he could not accept at evidence any evidence
previously given before another Magistrate. I
quite agree that, notwithstanding seotioe 11,
sub-section A of Act 41 of 1886, the Magistrate
was not bound to accept oral evidence pre-
viously taken before another Magistrate, but
that was what the Court was asked by the
plaintiff to do. The promissory note bad been
produced and presumably was of record, and the
only question was whether the note had been
paid. In order to enable the Court to decide
that question the defendant ought to have pro-
duced his witnesses, but instead of taking that
course he excepted to the jurisdiction. Clearly,
the Court ought not to have put the plaintiff to
the expense of issuing a fresh summons but
ought to have called on the defendant to pro-
duce his evidence. The appeal must be
allowed with costs, and the case remitted fo be
tried on its merits. Costs in the Court below
to be costs in the cause.
[ Appellant's Attorney, Gus. Trollip ; Respon-
dent's Attorneys, Messrs. Walker A Jacobeohn].
SUPREME COURT.
[Before the Bight Hon. Sir J. H. DB Villiebb,
P.C, K.C.M.O. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdobp.]
{18!*7.
Feb. 6th.
Feb. 12th.
Ship — Attachment cui fundandam juris-
dietionem.
This was an application on petition by Messrs.
Woodhead, Plant k Co. for the attachment
of the barque Oberon, which was about to
* See the aabsequent case of Woodhead, Plant A Co.
T. Qttlly, heard 24th Febrasry, 18»7.
leave the Dodu. An affidavit had been
filed by Messrs. Woodhead, Plant & Ca to
the effect that in October, 1896, at Middles-
borough-on-Tees, their agent shipped by the
Oberon 19,281 bags of Thomas's phosphate
powder. The ship arrived in December, 1896,
and subsequently came into dock, where, owing
to the negligence of master and crew, the cargo
was damaged by salt water. Messrs. Woodhead,
Plant & Co. sustained damages to the extent of
4t3,600,and were apprehensive that the ship
would leave without satisfying their claim, and
further, they intended to institute proceedings
against the owners of the barque for the re-
covery of damages.
The Chief Justice: When did the damage
occur?
Mr. Schreiner said that it occurred after the
vessel came into dock on January 21, 1897.
The Chief Justice : Why have they waited
until she is about to leave 7
Mr. Schreiner said that efforts had been
made to settle the question, but they had not so
far been successful. The ship was then moving
out into the Bay, and the petitioners required
an attachment for the pnrposeof founding juris-
diction. It was quite possible that a settlement
would still be effected.
The Chief Justice : Tou say it was throngh
the neglect of the master.
Mr. Schreiner said the petitioners contended
that there was no due delivery, and the damage
was due to no peril of the sea. The ship waa
moored alongside the quay when she waa dis-
covered to be sinking, but there had been no
discharge of cargo.
The order for the attachment of the ship,
ad fundandam jurUdietiimemt was granted
with leave to the master to npply on Tueadny
next or some future dato on due notice for the
discharge of the attachment.
PoHea (February 12th).
Mr. Schreiner mentioned the matter of
the barque Oberon, which was recently aitaohed
by order of the Court. He said that an agree-
ment had been arrived at between the partiee
with a view to releasing the ship from attaeli-
ment. Security had been arranged in the auna
of £2,00 >, and this sum being in the handa of
the Standard Bank, jurisdiction would siiU be
maintoined after the release. The parftlea were
satisfied with the security if the Court would
approve of the vessel's release.
The Court granted an order for the releaae of
the ship from attachment.
[Applicants* Attorneys, Messrs. Van Zyl jc
Buissinu6 ; Respondent's Attorney, C. O
Silberbauer.]
45
I 1897.
i Feb. 5Ui.
WILL y. DK JVT.
Settled aeeoaut — Written ackuowledg-
ineat of debt — Qpeuing account —
Attornej and client — Mistake.
Where, on a sett ement of accow^ts, a
written adtHowledgment of debt has
been given by one party in paymeiit
of the balance found to be due to the
other J the Court wilt, ia a suit on such
achnawledgment, allow the accounts
to be opened and re-examined upon
proof of some material mistahe in
such accounts,
A settled account between attorney
and client, or between other persons
standing in confidential relations to
each other, will be more readily
opened than accounts between persons
standing in independent relations to-
wards each other.
This was an appeal from the decision of the
Bendeat Magietrate of Gordonia in an action
broQgbt by the plaintiff against the defendant
for the reooYery of £7 Ids. 4d^ with interest from
December 3, 1895. upon a good-for signed by
the defendant in favonr of the plaintiff, and for
■iz shillings and seven pence for work done
between December, 1894, and July, 1890, being
balance of an accoun t of £2 (is. 2d. lees £1 14s. 7d.
paid on account.
Mr. Scttrle, Q.C., a. peared for the appellant,
sad Mr. McQregor for the respondent.
Mr. McGregor raised an objection to the
appeal being proceeded with on the grouod that
the appeal was not noted in due time. The
ease was heard on August 4, and the appeal was
not noted till September 3, 1890. He submitted,
as the plaintiff was an attorney himself,
he ahoald hare been specially careful to hare
conformed to the rules, and tliat he could not
now be heard.
Mr. Searle said he could not deny that the
appeal was not noted in due time, but he would
ssk under the special circumstances (as clearly it
was a matter in which the plaintiff had been
misled by the practice which had previonly pre-
vailed in Bechoanaland), that epeoial leave might
be given to proceed with the appeal He cited
Smith v. Pinto (Buch. 68, p. l06) and referred
to Wtndley v. Fatre decided yesterday. Our
appeal was noted within the time prescribed by
Proclamation 198 of 1894, which was Uw prior to
the annexation As a fact i espondente have them-
belves delayed in giving us notice of this
objection.
The Chief Justice: How is it that this
objection was not tab en earlier 7
Mr. McGregor: Some of the correspondence
was mlBlaid. Appellant has suffered no possible
prejudice through our delay. Counsel cited
Queen v. Prins (1 Shell, 199): Wiyyett v.
Jfossel Bay MunieipaOty (9 J. 246).
The Chief Justice : If this had been an appeal
from one of the older and more settled districts
in the Colony I should have had do hesitation
in refusing to allow this appeal to proceed, but
we cannot losesiRhtof the special circumstances
under which the parties have been acting, and
it is quite possible that the new law might have
escaped their notice. It is quite true that Mr.
Will is an attorney of this Court, and ought to
have known better, but probably the fact that
the law had been changed escaped his notice,
and under all these circumstances it would be
better to allow the appeal to proceed, if Mr.
Searle makes a special application.
Mr. Searle then formally made the special
application, and the appeal was therefore pro-
ceeded with.
At the hearing before the Resident Magistrate
the plaintiff stated that he had acted as the
defendant's attorney ; that he had repeatedly
endeavoured to obtain a settlement of the
amounts due to himself; that finally the
accounts were gone into with defendant who
gave the good-for for £7 16s, 4d., the amount
ascertained as the balance due. On the account
annexed to the summons there appeared an
item £1, which plaintiff at first stated was an
amount for which he had guaranteed defendant
with one Holmes, at whose shop defendant
wished to buy some goo Is; but in cross-
examination, I'lalntlff could not deny that the
amount was due to defendant for his expenses
as a witness in a case brought by one
Marquardt. The defendant stated that on
appl) ing to plaintiff for payment of his witness
expenses the latter said he could not give him
the money just then, but would instead give him
an Older on Holmes for goods, which he did.
The account rendered defendant on which the
settlement was arrived at also contained
charges for pound fees, and on a bill of costs as
attorney for the defendant in a case Lennox v.
De J^y (the present respondent). The plaintiff
refused to answer questions put to him as to
whether he had renderd Mr. Lennox an account
or had credited him with the costs now charged
against defendant. As to the pound fees the
defendant admitted the correctness of some of
the items but disputed the rest.
The Resident Magistrate gave judgment of
absolution from the iastance with costs; the
following were bis reasons :
4a
In tbiB case the pUiDtiff sued def endftnt on a
good-for and other charges amounting to
£8 2b. Ud.
It haa been proved in evidenoe that the
amount of £1 paid by one Holmes on aooount
of plaintiif to defendant was for witnesB
expenses due to defendant; also this was
tubsequently admitted by plaintiff after pro-
duction of an order to Holmei*. G( nsequently
the defendant could not be cbaiged with the
amount and interest thereon.
The items for pound fees are very doubtful,
and the plaintiff has not clearly proved that
he is entitled to charge these items.
The case of Lennox v. DeJuy was settled out
of court ; the bill of costs charged by plaintiff
who is an attorney of this court is absurd and
illegal and the plaintiff clearly has no right to
make this exorbitant charge.
Most of the charg s appear so doubtful that
I find it impossible to separate the items really
due from those doubtful.
For these reasons my judgment will be abso-
lution from the instance with costs, leaving the
plaintiff to bring on his case again if bo
inclined in a more correct and legal form.
Against this decision the appeal was now
made.
After argument.
The Oourt dismissed the appeal.
De Villiers, C.J. : There is no doubt that in a
suit on a written acknowledgment of debt, the
bnrthen of disproving its correctness lies upon
the defendant. As between men of businemi
dealing independently with each other it would
be difficult to satisfy any Court that a good-for
or other acknowledgment of debt given on a
settlement of accounts does not tru*y represent
the defendant's indebtedness. Where, however,
errors are i»hown in such accounts the defendant
would be entitled to have them thoroughly
investigated, notwithstanding any settlement
which may have taken place. In the present
case, not only have errors been admittedly
made in the accounts rendered by the plaintiff,
but his relation towa*ds the defendant was the
confidential one ot an attorney towards his
clieut. The Magistrate was quite justified in
more readily opening the accounts between
them, although these had been settled by means
of a good-for. That document itself shows the
defendant to be a somewhat illiterate man, for
the signature is that of a man who is hardly
able to write his own name. The result of
opening the accounts was to show that there
were two important items which required some
explanation from the plaintiff. As to the first
of these itenis he refused to answer perfectly
releTant quettions put to him in cioss-e^amiQa-
tion, and the Magistrate was justified in
drawing his own deductions from suoh refuoiU.
As to the other item be did not refuse to give
information, but the explanation whiok he £»▼•
was quite unsatisfactory. The two itema
together exceed the sum claimed, and the Court
below correctly pronounced absolution from the
instance. The appeal must be dismissed with
costs.
Buchanan, J., and Maasdorp, J., concurred.
Appeal dismissed accordingly, with costs.
[Appellant's Attorney, Ooa. Trollip; Respon-
dent's Attorneys, Met^srs. Walker k Jaoobsohn.]
SaPREME COURT
[Before the Right Hon. Sir HsiirBT Di Vii.-
LIBBS, K.C.M.G. (Chief Justice), the Hon.
Mr. Justice Buchanan, and the Hon. Mr.
Juptice Maasdorp.]
BUEAB V. BADKMKIRB.
J 1887.
{Feh. dtb.
Siimanons — Pleading — Material allega-
tion — Oral contract — Written agree-
ment — Variance.
II. imd S. entered into an oral (Agree-
ment/or the saleio S. of the feaikers
of certain twenty ostriehes.
Thereafter a written agreement wa9
entered into cnnfrmins^ the oral *
arrangewenty but not specifying the
number of ostriche$ the featheru of
which were sold.
S. sued R. upon the oral agreememt
for damages for breach of contract,
but the defendant excepted to the sum-
mons on the ground that it did not
state that as a fact the ostriches had
borne any feathers, and further that
the summons was at variance with
the written agr ement. The Resident
Magistrate upheld the exceptions.
On appeal the Court held that thr
presumption was that in the ortlinar^
course of nature the ostriches wnmid
bear feathers and that it was not
necessary to allege that the ostriches
47
kmd home Mem, and held further
thai the parties did not intend to
em1)ody the whole of the oral in the
written contracly and that plain tiff
was entitled to sue a» he had done.
This WM ao appeal from Ihe deciBion of the
Resident Magistrate, Uniondale, in a case in
which the appellant was pltintiff and the
reqxmdent defendant*
The summons in the Goart below called on
defendant io show why he had not delivered to
Zelieh Shear, of Uniondale, trading at Union-
dale, the plaintiif, the feathers of certain twentj-
one oetriobes or paid him the sum of £11 ids*
sterling, and at the same time to show cause
why he ehouid not be condemned and ordered :
(I) To deliTsr to the plaintiff the feathers of
oetiaia twenty ostriches sold by the defiaodant to
the plaintiif as agreed upon orally at the house
of the plaintiff in the Tillsige of Uniondale on
or about the 24th day of March, 189«, by the
plaintiff and defendant, whioh said feathers
dsfendant undertook to deliTer to the plaintiff
during the months of April and October, 1886,
en his farm Sonterwater, which agreement was
pertly ratified and confirmed in writing by the
defendant on or about the 2nd day of April.
1886^ at Souterwaler, in respect to his (defen*
daot^s), liability and undertaking to deliver
date of deli very and price of the said feathers
per lb. only, but in which confirmation of said
agieement the defendant failed to specify the
number of oatriches of which the feathers had
been bbM and bad to be delivered by him to the
■aid plaintiff, copy of which confirmation
of said agreement is hereunto annexed, and
which the said defendant on divers occasions
sahseqnent to the 8nd dar of April, 1896, was
leqneeted and undertook, but now refuses and
negleete to deliver to the said plaintiff ; or in
deiMili thereof to pay to the said plaintiff the
sum of £10 sterling as damages sustained by
the said plaintiff by !!eaeoa of the breach on
the pnit of the said defendant of the said
ag r e em ent and contract as set forth above, and
failure and refusal to render and deliver the
f eathetu of the said twenty ostriches to the 9aid
plaintiff during the time intervening between the
mid months of April and October, 1896, and in
that tbe said plaintiff went out several times to
theaaid farm Sonterwater, about forty-two miles
from the village, to get delivery of said feathem
and which could have been sold by him to
otbevB ai a profit.
A second count in the summons set forth
that defendant had agreed to deliver the
fearers of three other ostriches at 16a. per
ostrich, but had failed to deliver the feathers of
more thin two of the birds though plaintiff had
paid the amount of £2 56.
The plaintiff admitted that certain tenders
had been made by defendant, whioh tenders the
plaintiff deemed insufficient. Wherefore the
platDtiff prayed that the defendant might be
ordered :
(a) To deliver to the said plaintiff the
feathers of the said twenty ostriches as set
forth in plaint of this summons or in default
thereof to be adjudged to pay the sum of £10
sterling for damages.
ik) To deliver to thesaid plaintiff the feathers
of one ostrich as set forth in plaint two of this
summons, or in default thereof to be adjudged
to pay the sum of £1 lOe. sterling, together with
interest a tempore morae and costs of suit.
The following was the agreement signed by
Rademeyer atd annexed to the sainmons :
" I herewith promise to sell ostrich feathers
to Mr. Shear at £i 8s. 6d. per 100 just as the
feathers are plucked, with white feathers, also
to pluck and deliver the last of the feathers in
October, 1896. I am ftill to receive the money."
Before the Resident Magistrate the defendant
by his agent took exception to the plaintiff's
summons as follows :
1. That ttocause of action is disclosed in said
summons, thereby prejudicing defendant's
defence.
8. That the said summons is entirely at
variance with the written agreement between
plaintiff and defendant and annexed to said
summons. Wherefore defendant prayed that
said summons be dismissed, with costs of suit.
The Resident Magistrate upheld the excep-
tion for the following reasons :
The reasons whioh the Court held and con-
sidered would prejudice Uie defendant in his
defence are that the summons is defective in
that it states that an oral agreement was
entered into between the parties at Uniondale
on the 24th March, 1896, and that this agree-
ment was partly ratified and confirmed in
writing at Sonterwater on the 2nd April, 1896.
Against this decision the appeal was now
brought.
Mr. Innes, Q.O.. for the appellant; The
summons clearly disoloees a cause of action.
It is not very artistic, but it is clear what are
the grounds of plaintiff s grievance. He sues
upon the oral agreement and annexes the sub-
sequent written contract ; which was unneces-
sary, as the document might have been put in
as evidence at the hearing. It is clear that
what the plaintiff means by saying that the
oral agreement iM9*% ratified the verbal under-
48
Btaading ii that the dooumentwM incomplete,
M it did not stnte the nninber of birds. The
annexing it to the Bummons does not ernhnmss
plnintiff; it is not InoooBiBtent. The Boramons
does myt mention the purchaee price but clnims
dnmagee. The Bosident Mngistnte^B reneons
are abnurd.
Mr. McGregor, for the retpondcnt: The sum-
mons is bo prolix a« to be actnally embarrasBing
and prejudicial to the defence.
Buchanan, J.: It rather henefltB you; the
plaintiff BhowB his hand.
TheBummouB diBoloBCB no eauBe of acUon.
Plaintiff founds on a contract for the sale of
ostrich feathcTB to be deliTcred in April and
October. There his claim ifl for things not yet
in esse: it appeared to be in the nature of
emptio ret op^ratw. That being so, there must
be an allegation that at the respective datr s
when delivery could be claimed, there actu«IlT
were feathers m eMe and deliverable. Pptkoer
on 8aiet p. 6; MeyW$ Civil Lam of Sale, p. 81).
Further, there was no allegation that any price
had been agreed on, nor was any price
mentioned in respect of the agreement of March
33 and 24. But that was the agreement sued on,
as appeared from the remarks of appellant's
counsel also. It is clear law that without any
agreement as to price the emptio ic t#»-
perfeeta. The written agreement of 2nd
April mentioned a price, but that was not
the agreement founded on, and there ttie
number of the birds was not mentioned.
Plaintiff should clearly state in hiB summons on
what agreement he founded ; as it stood it was
impossible to fix the time at which it alleged
that there was mutuality. Begarding second
count: Amount in dispute really is only 16s.
(vide tender) and if the appeal were only
allowed as to that rmall amount that phould
not alEect the question of costs : Klopper v. Van
Straaton (ilJ^ 90-
The appeal was allowed with costs.
The Chief Justice gave judgocent. He 8a*d :
There have been two exceptions to the summons
in this case. The first is that no cause of action
is disclosedt thereby prejudicing the defence,
and the seoond is that the summons is
at variance with a written agreement
entered into between the plaintiff and
the defendant* Now there is no doubt
that the summons is exceedingly prolix.
It is inartistic and not such as one
would expect from a practitioner of this Court :
but we must consider the dreumstances of tiie
country, and the circumstances under which
Magistrates' Courts are held. Agents are allowed
to practise who have no experience, but what
the Court has always required is that the defen-
dant may know from the sammons the case he
is called upon to meet. Now although this
Buromons is somewhat lengthy, I think there is
no difficulty in ascertaining what the plaintiff
really sued to recover. The main objection is
the first exception. Now, reading the summons
as a whole, it is quite clear that the plaintiff
alleged: I bought from you the feathers of
twenty birds, when th^ were plucked, at
£1 as. 6d. a bird. That is really what it comes
to. You have to read the whole of the summons
in order to come to that conclusion. If
the defendant wished to prove that
these birds bad no feathers, it was quite
competent for him to plead thus : It is quite true
I sold to you the feathers that were to be plucked,
but it so happened that those birds have not
produced any feathers. Probably that would
have been a good defence. When It comes to a
question of pleading it appears to me suflloient
if it is stated that the feathers of certain tweoty
ostriches were sold at £1 te. 6d. a bird, ike
presumption being that those ostriches would in
the ordinary course of nature bear feathers, and
I don't think it was n eco s sa ry to allege tbat
those ostriches did bear feathers. Therefore mi
this point of pleading I am of opinion that the
exception cannot be sustained. Then a second
exception is raised with regard to the summons
being at variance with the written agreement,
and that is the ground upon which the Magis-
trate based his judgment. 1%ere was a com-
plete oral agreement, but afterwards when they
came to state in writing what they
had agreed upon, they omitted to
add what was in their minds, via.,
that the feathers were the produce of twenty
ystricbes. All that seems to have been agreed
before, but they omitted it in the written
»ment, thinking that both would rememl>er
lat they were contracting with regard to the
ithers of twenty birds. Well, I don't see how
ihe omission of *' twenty " in this subsequently
Written agreement can in any way prejudice the
defendant* This writing was not intended to '
fmbody the whole of the contract. It is not I
ike a case where the Court has held tbat a '
Irritten contract must be deemed to have om- ;
bodied the wIh^ of the oral contract. I think \
jhU is really too technical an ohjeetion,
feind full justice would have been done by the
Magistrate by going into the mutter. We mnat
aUow the appeal witti costs, and remit the
{safe to the Magistrate to be heard on its merits,
ihe costs in the Court below to be costs in tbe
use.
[Applicants* Attorneys, Messrs. Walker ft
Jacobsohn; Bespondents' Attorneys, Meears
Van Zyl A Buiasinn^.]
c
49
SUPREME COURT.
■Before the Right Hon. Sir Henry dk Vil-
UttS, K.C.M.Q. CCliief Justice), the Hon.
Mr.Jaalice Bucmanajn, and the Hon. Mr.
Justice Maasoob.p.3
In. TC «. T. WINQCT8T. I F,^^%t,,.
Hr. Graham appeared on behalf of the
oediton in the inisolvent estate of Broest
Theodore Winqaiat, wine and spirit merchaDt,
of Plein-Btreet, and aerated water <xianufac-
tirer. of Someraet^road, and aoplied for the
appmaimeiit of Bir. James Jackson Bolam as
proviiioaal trustee, in order to carry on the
bwlnesB. The assets in the estate were valued
It £a,OlV, and the liabilities amounted to
£i,OfiS, the petition being signed by creditors
lepRsenting claims to the amount of over
The application was granted .
HAUPT V. HAUPT.
\ 1^
(Feb.
Marriage — Minor — Fraud — Hestitu-
tiou — Matrimonial domicile — Cora-
inuuiiy of property.
Th^ man^Hige of a minor munt be
deemed to be valid uniil annulled ht/
judgment of a competent Court,
yfiuonty i» not per se sufficient
^r€fiind for annulling a marriof^e.
If either party is entitled to restitn-
ttoa by reason of the fraud of the
other, proceedings mnst he taken
within a reasonable time after dis~
cftrery of the fraud.
The matrimonial domicile must
dei'ide whether the marriage is in
community or not-
The parties having gone fo England
wciih the intention of returning to this
colony and residing here, the mar-
rrage Uwk place during their
temporary residence in England;
Held that this Colony was the
matrimonial domicile, and that, in
the absence of an ante-miptial con-
tract, the marriage was in com-
munity of goods.
1897.
10th.
This was an action for divorce instituted by
Mrs. Johanna Maria Haupt against her hus-
band, Pierre Fransoi^ Haupt, on the ground of
his adultery.
The plaintiU's declaration set forth :
1. The plaintiff resides at Mowbray, in the
Cape district; the defendant, her husband,
resides at Cape Town.
2. The plaintiff and defendant were legally
married at the parish church of St. Maryle-
bone, in London, on 3rd Mar, 1882. The Raid
marriage still subsists, and there were born
thereof six children ; to wit, four boyH and two
girls all minorK.
8. At the time of the celebration of the said
marriage both the plaintiff and the defendant
were domiciled in the Colony, and the .said
parties were married in community in
accordance with the law of their domicile,
4. In or about July, 1S96, at Cape Town, and
subsequently on board the U.S.S. Greek, and
thereafter during the years 181*6 and 1897, and
more particularly in January. 1897, at Cape
Town, the defendant committed adultery with
one Annie Steele.
The plaintiff claims :
(a) A decree of divorce
(ft) A division of the joint estate, including
therein the defendant's life interest in respect of
certain interest, income, and dividends accruing
under and by virtue of the ^ill of the late
Daniel Egbertus Haupt.
(^) Custody of the children.
(rf) That the defendent be ordered to pay the
sum of £100/;^?' annum towards the support and
maintenance of the said children.
{p) Alternative relief and coBts of suit.
The defendant was barred in default of filing
plea. The defendant admitted (in court)
the adulter}', but contended that there was no
community of property, and that themariiage
with the plaintiff was not a legal one on account
of the fact that he was not of full age at the
time.
Mr. McGregor appeared for the plaintiff, and
the defendant conducted his own case in peraon.
Johanna Maria Haupt, now residing at Mow-
bray, said that she was born at Drakenstein in
the Colony, and her maiden name was also
Haupt. She left the Colony before she was
married to the defendant, who had lived in the
Colony up to that time. They went to England
together, and were married at St. Marylebone
parish church about a month after their
arrival in England. The defendant was
supposed to be studying for the medical
profession. They remained in London while
the defendant was studying for about five
years, and then the defendant came out to
60
the Colony, and she followed him. There
were six children of the marriage, four of whom
were living with witness, while two of the boys
were taken away recently by the defendant. The
eldest child was fourteen years of age. While
they were in England she and her husband, who
were cousins, were supported by an uncle, who
remitted to them a sum of about £200 to £260
per annum. Witness had been permanently
separated from the defendant since June, 1896.
She knew a certain Nellie Steele, and recog-
nised her photograph (produced]. She was
staying at Newlands, opposite witnesses house,
and witness nad seen her on one occasion quite
drunk in the afternoon. Since June she had
seen Nellie Steele in company with the
defendant and the two boys.
The defendant, proceeding to cross-examine,
aeked the witness whether she had ever mis-
conducted herself before her marriage.
The Chief Justice: Ton cannot put that
question. Tou have not pleaded misconduct.
Cross-examination continued: She was
married in May, 1882, and her first child was
bom five months after the marriage, the
defendant being the father. She had condoned
all previous offences by the defendant up to last
June, and had condoned certain offences when
he returned from the Transvaal.
By the Court : She wished to have the custody
of all the children, but she had no means of her
own to support them, and was dependent on
what the defendant could give her. She
thought she could maint<ain the children on £30
a month.
Fre-'erick Orken Cheese, porter at the Royal
Hotel, stated that he knew the defendant fifteen
years ago, when he was living in England with
Mrs. Haupt as a married man. In June last
the defendant came to the Royal Hotel with
Nellie Steele, and they occupied the same room
there, giving the names of Dr. and Mrs. Haupt.
Since then he had seen them together at the
Railway-station.
Cross-examined : He c«tuld not say whether
there was another Mr. Haapt staying at ike
hotel at the time.
George William Steytler, secretary of the
Colonial Orphan Chamber, said he was trustee
und«r the will of the late Daniel Egbertus
Haupt. Defendant had a life interest under
that will, and received half of the total aonual
income from the estate, which amounted to
about £1,000. The other £500 went to Daniel
Haupt Brown. An arrangement had been made
between the parties by which Mrs. Haupt re-
ceived £17 a month and Mr. Haupt £7 a month.
The defendant had surrendered his estate, and
a loan had been raised to extinguish
the debts, and defendant had Insured his life to
secure the loan. The defendant's debts would
be finally extiuguished in twelve or thirteen
years. At present the creditors were receiving
the net income less £24 a month.
CroBs-exa mined : For the last six months he
had paid the £7 a month to Mrs. Haupt on the
defendant's instructions. Mrs. Haupt was the
revisionary legatee after her husband's death .
He was not aware that there was another bond
of £2,^)00 upon the defendant's life interest.
By the Court: The payment of the £7 a
month to Mrs. Haupt had been stopped since
January. The defendant had been insolvent,
but all his liabilities had been discharged by
witness.
The defendant then entered the box. He said
that he was married on May 8, 1882, and was
then fifteen years of age. His present age was
twenty-nine. He ha'i no means to go to
England. Plaintiff took him to England, bat
he did not know where she got the means from.
She there forced him to marry her and he
found himself married before he knew what he
had done.
The Chief Justice : But there is no plea of
fraud or anything of that kind.
Defeudant (continuing) said that in the
August after the marriage a child was bom
Their married life had always been of a very
unpleasant nature, both here and in England.
He was not in a position to take steps to have
the marriage declared illegal, and had had no
means since his birth till the legacy came to
him.
The Chief Justice : But you declared that you
were of full age when you were married.
The c'efendant said he remembered making
no such declaration. He had received notice
that morning of the intention of the mortgagee
(Daniel Brown) to foreclose in respect of the
bond for £2,000 on his life interest.
The Chief Justice : But there is a complete
cession to Mr. Steytler. How could you cede it
to a second person.
Cross-examined: Daniel Brown was a co-
legatee under the will.
Defendant, on leaving the box, and arguing
upon the case, contended that his wife had not
looked after the children, whom he had found
in a state of neglect. She spent her time ^in
going to religious meetings and Salvation Army
meetings. He had no means, and only made
enough to keep himself by an occasional specu-
lation.
A decree of divorce was granted.
De Villiers, C.J. : The defendant denies the
validity of the marriage, but I am satisfied that
it was perfectly legal. He declared himself at
51
/
fitttaiaetobe of fiill wl^^ mud, in the absence of
#By proof to the oont-rttry l>eyoiia his sUtement
f^ witness l>ox, w« mlls^ &8«ume thit the
*«iiitK)nifms true. Bult even if he was not
«j«e, his marringe nrast l>e deemed to be valid
JWitiB annulled by jiulsment of the Court,
tttemmorityatttic time of lii 8 marriage would
■wbyiteiilf ^Ave lieen Bufficieot ground for
^Tig him of tHe l)oii<l^ of marriage : see
»»rt (4, 4, Ah\ If by- frmud he had been
^Iv ^^ * marriage with the plaintiff
•wwut his father's consent, he would have had
gwxl gronnd for restitution, but only within a
rnwnable time after dit^covery of the fraud
Ao siepi^ of any kind were taken, and now'
after scleral years of marned life and after six
chiWiea haire been bom of the mar-
^»t^ he Eeehs to raise this somewhat
««eaiUh\e defence to an action for divorce.
The next question is whether or not the
pailies were married in community of property.
Xo ante-nnpiial contract wag executed and]
Ukerefore, if their matrimonial domicile was in
thia colony their marriage must be held to have
been in community. The marriage took place
in England, but according to the plaintiff's
eridence, which I believe, the parties had gone
there with the intention of returning to the
Cokmy and rcBiding here. Their relations
lived here and the defendant's object
in going to England was to study there
for the medical profession. Clearly
therefore the Cape was the matrimonial
dcHnicile, and in the absence of a contract the
marriage must be held to have been in oom-
manitT. The adultery having been clearly
proved, the plaintiff is entitled to a decree of
divorce and to a division of the common
•■tale. The Coort will give her the custody of
the minor children and order the defendant
to p^y her the sum of £1 IQb. per month, in
reepect of each child, until such child shall reach
ttm age of sixteen.
Buchanan, J., and Maandorp, J., concurred.
Jndlgment for plaintiff accordingly.
fPIaintiff's Attorneys, Messrs. Fairbridge,
Ardeme k Lawton. J
SUPREME COURT.
I Before the Right Hon. Sir J. H. de Villiebs,
P.C, K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdo&p.]
PROVISIONAL ROLL.
TEUBSB V. If ArrfiBWS.
J 1897.
I Feb. nth.
Mr. Jones applied for provisional sentence on
a mortgage bond for £30, with interest at the
rate of 8 per cent., from March 1, 1886. and that
the property might be declared executable.
Granted.
DB YILLIBBS Y. BUBQBBS.
Mr. M askew applied for provisional sentence
on a promissory note for £203 12s.
Granted.
8AMB0N y. BAMBON.
This was an action for divorce, instituted by
Johannes Adam Samson against his wife
Katherina Maria Samson, by reason of her
adultery with one Joseph Adams. Plaintiff
claimed a decree of divorce, the custody of the
minor children, and the forfeiture by the de-
fendant of her rights in respect of her marriage
to plaintiff in community of property.
Mr. Close appeared for the plaintiff; de-
fendant was in default.
Reginald Douglas Herold Barry proved the
marriage between the parties, which took place
at Beaconsfield on June 30, 1891.
Johannes Adam Samson, the plaintiff, said he
was married at Beaconsfield to the plaintiff, and
tiiere were two children of the marriage aged
four and two years respectively. A man named
Joseph Adams, his cousin, lived near him at
Kimberley, and was very intimate with him.
About two years after Adams came to Kimber-
ley, in consequence of what he heard, he spoke
to his wife, and told her not to put Adams's
room in order which she was in the habit of do-
ing. Subsequently his wife Went away to her
mother, and witness fetched her back, but she
again left him. He had property when he
married, but his wife had none.
The Rev. Thomas Haylett^ minister of the
Dutch Reformed Church at French Hoek, said
he was formerly a minister at Beaconsfield, whera
plaintiff was an elder in his church, and was a
very steady man. On returning to Beaoons-
fteld he made inquiries, and found
52
that the plaint! If *8 wife had goae
away to Bast London. Witness proceeded
to that port, and found the plaintiff '» wife
liring with Adams. They admitted that they
were living together as man and wife; Mis.
Samson admitted that she was pregnant, and
Adams said that he was the father of the child.
A decree of divorce was granted, the plaintiff
to have the custody of the children, and the
defendant to forfeit her rights in respect of her
having been married in community of property.
[Plaintiff's Attorney, V. A. van der Byl.]
CRUYWA(JKN V. OOID.
} 1897.
/Feb. nth.
Uule 333 — Documents — Inspection.
A defendaiU havfn^ in ht'jf plea
slated that the cotUents of a certain
document in his poifsession relating
to matters in f/uestion in the action
had been supplied to th-e plaintiff:
Held on an application under the
333rrf Rule of Court, that the
defendant was hound to give inspec-
tion of such document to the plain-
tiff, who had not had sufficient
opportunity to take a copy of the
document.
This was an application by the plaintiff
(John Jacob Cruywagen) in a pending action (in
which a plea had been filed by defendant) call-
ing on the defendant Emily Qoid to show cause,
if any, why she shall not be ordered to allow the
plaintiff to inspect and make a copy of the
report referred to in paragraph 4 of her plea.
The action was one to recover money due for
certain work performed by plaintiff in con-
structing a building for defendant which, the
defendant alleged was constrncted in a defective
and unworkmanlike manner.
The following affidavit was filed by plaintiff's
attorney, Mr. G. M. Walker :
1. The pleadings in the above matter have
been closed, and I crave leave to refer this
Honourable Court thereto as filed with the
Registrar.
2. The defendant in paragraph 3 of her plea
alleges that the work for which payment is
sought by the plaintiff was performed in an
unskilful, negligent, improper, and unwork-
manlike manner and not according to the
contract; also, that said work was left
unfinished by the plaintiff ; and, in paragraph 4
thereof, she alleges that she has called upon the
plaintiff forthwith to complete the said work
according to contract, and remedy the defects
therein as set forth in the report of an architect
which was duly supplied to the plaintiff.
3. Acting on the advice of his counsel \h.e
plaintiff of date 25th January, 1897, called on
the defendant through his attorney under Rule
of Court 333, sub-section (if), to produce for hia
inspection the architect's report referred to in
paragraph 4 of her plea aforesaid.
4. The defendant has not complied with the
requisition of the said notice, nor has she in
any respect complied with sub-section (/), of the
said Rule of Court
5. Not receiving any response to the said
notice, I twice personally interviewed the
defendant's attorney and made request for an
inspection of, and for leave to copy the said
report, but without result. The said attorney
declined to allow any copy of the said report to
be made or any not€S thereof to be taken,
alleging that the report formed his case, and
that he would not comply with the requisition
of said notice, save under order of this Honour-
able Court.
6. I am aware that prior to the action brought,
the said attorney verbally communicated to the
plaintiff thegist of the said report, but the plain-
tiff cannot recall its many details, and it is
absolutely necessary that he be permitted not
only to inspect, but to make a copy of the said
report. But no copy of the said report has ever
been furnished to the plaintiff.
7. To enable the plaintiff to meet the case aet
up by the defendant, it is in his and his counsers
view ne«essary that a copy of the said report
should be obtained by him.
The following answering affidavit was lodged
by defendant's attorney, Mr. J. C. de Korte :
1. The architect's report referred to in the
above affidavit was obtained by the respondent
for her own information.
2. The said report was submitted to the appli-
cant for his information and perused by him in
deponent's presence in September last. That
the applicant after perusing the report,
deponent has been informed, called on Mr.
Vixseboxse, the architect, who drew up the
report and requested him to alter the same so
as to enable him to obtain payment of the
alleged claim.
3. After the notice referred to in the above
affidavit had been served deponent met the
applioatn's attorney in the Public Buildings,
Cape Town, and offered to allow him to inspect
.the report, and informed him that deponent
could not allow him to take a copy or notes
thereof, as the report contained a portion of the
respondent's defence to the action.
63
iihe reepontient ^will V»e prejudiced in her
deleace to the action if sUe alloinred the appli-
eanucopy oi the eaid report, mud that the said
trcbiteci ( B&r. V iiLseboxse > iw i 1 1 b« prod uced at
Ui£ trial aa aw itneBs on l>ebi.&i£ of the defence.
a. Deponent verily believes ttiat the reason
theip^cantia bo fiesirous to have a copy of
tbe report is to give bim a a opportanitj to
itqaire into tiie evidence the respoodent
iateocU to produce at the trial aod thereby
cnabte b'lm to prepare his evidence for Ihc
trial
Hi. ftchreiner, Q.C., for the applicaot: The
pilea stateg that the defects complained of in
refaid to the building are mentioned in an
•ichiiect'a report "*' which has been supplied " to
tike plaintiff.
The Chief Justice : But could you claim to
aw it if there were no mention of it in the
plea?— They could not nee the report in evidence.
Mr. Schreiner: We could at least have got
particulara. The report now ia part of the
rn gestae. Practically their whole case is in
the report. See Rule 333, sub-aectiou {d). We
do not know what case we have to meet.
Mr. Searle. Q.C., for the respondent : Clearly
the rule does not apply in a case like this. We
have not to make a case for plaintiif to meet,
nor make his case for him. Even if the words
rela^ng to the architect's report are struck out,
the plea will he a perfectly good one. The
applicants have had all the information they
want, the mention of the report is a mere
Mirphisage in thp pleadings.
l>e Villiera, C.J. : Prima facie when reference
ia made by either party to any document which
relates to matters to question in the action the
c»pposite party is entitled, undei Rule 333, on
doe notice to inspect the documeut and make a
cop3' thereof. The party to whom notice has
Ijcen ^iven may object to the inspection,
but he must state the grounds of his
<»bjection. One valid ground would be
that he would be unjustly prejudiced
hv allowing the inspection, but this ground is
taken away from under the defendant's feet by
his own statement in his plea that the contents
of the document now in question had lieen
■applied to the plaintiff. It appears that the
plaintiif had not sufficient opportunity to make
kimflelf acquainted with the contents, and he
most now be allowed to inspect the document
and take a oopj thereof. The application is
allowed with costs.
Their lerdships concurred.
[Applicant's Attorneys, SicssrH. Walker «b
Jaooteolui; Beepondent's Attorney, J. C. de
Eoiie,]
MAMA V. MAGI8TBA1£ OF ( 1897.
UEBSCUBL. ( Feb. nth.
Review — (J ross irregularity — Native
Locations Act.
Where a person charged in a Magis-
trate's Court with a criminal offence
shows good ground to the Clerk of
the Court that the Magistrate is a
necessary and material witness for
the defence, the refusal of such
Magistrate to allow his c'erk to issue
process to compel the attendance of
such witness, under the 60th section
of Schedule B to Act 20 of 1866,
constitutes a ground^ if objected to at
the trial, for setting aside a conviction
by the same Magistrate.
This was an application to have certain
proceedings which took place before the Resi-
dent Magistrate of Uerschel on the IGth June,
18U6, reviewed and set aside.
The case in ((uestion was one in which
Shadrach Boyoe Mama, Elizabeth Mama, and
Ignatius Mama were charged with contravening
section 20 of Act 87 of 1884.
At the hearing before the Resident Magistrate
on the 16th June. 18D6, the following evidence
was inter alia led :
Charles Joseph Dovey, Superintendent of
Natives in the Herschel district, stated that
upon instructions he went to Mama and
inquired by what authority he was living in the
location (Ngesiman's location). Mama stated
that he and Kgesiman, the headman, had seen
the Resident Magistrate at his office and
obtained his authority to live there. He (the
superintendent) had never had any application
from Mama for leave to live there, nor had
he given such leave. Subsequently Mama
repeated that he had the Resident Magis-
trate's permission. Upon the Resident Magis-
trate's instructions Mama and the headman
were brought to the Resident Magistrate's
Office on the 3rd June, when an interview took
place. The Resident Magistrate asked Mama
why he had alleged that the Resident Magis-
strate had given him permission to live in the
location. Accused admitted he had alleged it,
and maintaineil that this wan true. The Resi-
dent Magistrate said that it was absolutely
false ; and warned Mama to leave the location
in seven days. Mama did not leave. All
natives had to obtain the Resident Magistrate's
permission to live in a location through
witness.
/
54,
NKesiman, the headman, ntated that he had
gone with witneBs to eee the Resid nt Magis-
trate in Decern her, 1896, about accused living in
the location ; and that he alone saw ihe Resi-
dent Magistrate CMama staying outside). The
interpreter was the only other person present
The Resident Magistrate gave him permission
for Mama to live in the location ontside the
magisterial reserve. He (the headman) in-
formed the superintendent, who then pointed
out the spot where Mama < ould build his house.
Silas, the interpreter, stated that he was
present at the conversation in December. 18.>6,
between the headman and the Resident Magis>
trat«. The headman asked for a site for Mama
to build on. The Resident Magistrate asked
whether the sit-e was in the magisterial reserve
or outside. Ngesiman stated it was in the
location. The Resident Magistrate then told
him to go to the superintendent, but gave no
permifsion whatever to build.
Thompson Smith, a trader, called for the
defence, stated that a fortnight before the trial
he had a conversation with Mama, who told
him the Resident Magistrate had ordered him
off the native reserve. Witness asked him
how it was that the Resident Magistrate had
given him permission to live there. Mama
replied that it was a lie t at he had told ; as he
had really only received the headman's per-
mission.
Shadrach Boyce Mama, the accused, stated
that he was an enrolled agent practising in the
Resident Magistrate's Court, Herschel. He
acknowledged that he had only applied to the
headman for leave to live in the location. He
had not known he had to see the Resident
Magistrate and he had never got the Resident
Magistrate's permission to live there.
** The accused was found guilty of being in a
native location without authority*' and
ordered to remove from the Herschel native
location.
On the 4tb December, 1896, Mama made an
afhdavit stating that previous to toe hearing of
the case, he presented subpoenas to the Clerk of
the Court for issue, calling the Magistrate (Mr.
F. Whitham)as a witness for the defence ; that
the clerk insisted on consulting the Resident
Magistrate before issuing the summons, and
that thereafter the clerk informed deponent
that the Resident Magistrate declined to
allow hi >.iself to be subpoened; that at
the hearing of the case, deponent's attorney
requested the Resident Magistrate to recuse
himself 02 the ground of his being prejudiced
in the matter ; that the application was refused ;
that the headmaa was at a Bubse<iuent Circuit
Court tried for perjury al eged to have been
committed at this trial and acquitted.
The Resident Magistrate in an answering
affidavit denied that any statements made or
acts done by him were of such a nature as to
prejudice him in any way or to render him
incompetent to try the case ; that he was never
properly rescued; or that there were at any
time any grounds for such a step, that he had
never improperly consulted with or advised the
Clerk of the Court. He stated that on the
clerk showing him the subpoena for him (the
Resident Magistrate), Mama was sent for. The
Resident Magistrate informed Mama that a
mere request to subpoena the Magistrate was
insufficient to justify him in asking Govern-
ment to appoint another Resident Magistrate
to try the case; that he was ignorant of aoy
evidence that he could give for Mama,
and that under section 69, schedule B, Act 20 of
1856, he must be informed as to the nature of the
evidence which was required from him to
satisfy himself that it was material and neceB-
sary for the defence; that the application
would then be considered. Mama left, and did
not approach him again. At the trial defen-
dant's attorney referred to Mama's request to
subpoena the Resident Magistrate ; the latter
thereupon answered him in the same terms aa
above, stating that he was th^n still prepared to
consider the application ; that defendant's
attorney stated that he was not prepared to
show grounds and did not press the.application.
The Resident Magistrate denied that his action
was in any way malicious.
The summons for review called upon the
Acting Attorney -General to show cause why
the judgment and proceedings should not be
reviewed and set aside on the following
grounds :
1. That the said Magistrate (Fred. Whitham)
was incompetent to try the said case by reason
that statements made and acts done or alleged
to have been made or done by him were of the
essence of the question tried by him.
2. That the said Whitham was duly and
properly recused, but nevertheless insisted on
hearing the case.
3. That there were gross irregulariUea in the
proceedings in that the defendant desired to
subpoena the said Whitham as a witness, but
that the Clerk of the Court refused to issue the
subpoena ; that said Whitham improperly con-
sulting with and advising the said clerk before
the hearing of the case with regard to the issue
of the said subpoena.
4. That legal and competent evidence was
thus excluded.
5. That there was no evidence before the
Court on which the accused could have been
properly convicted.
65
IThiithemctioik of tlie 8 Aid Whithsm was
■tfiooiu, and ttiAt- tHo proceed ings were in
otberreipecUsioe«.ly irregular and contrary to
Itv.
7. That the aeotence | a8t»ed by the tiaid
Whitham, viUinK as Rc«^ideDt Magistrate, was in
execno! his ^iLTiadiction, inasmuch as he had
no authoriiy to order Ibe removal of the
teeoKdiioia the Uerectiel native reserve.
The gammons also called on Mr Whithain to
dww tause why be should not individually pay
the a»ti of the proceedings.
The foWowing waB the Proclamation by Sir
Heniy Hmith Ciseued on the 3 let July, 1850)
eoD tiUitmg the Herechel reserve a native
looatioii :
WheT«aa I have deemed it expedient to include
in the diTi&ion of Albert, the country occupied
bj ceriaia Ahongines attached to the Wesleyan
MiaBMmary Station at the Wittebergen; now
therefore, I do hereby, in the name of Her
Maieaty, aubiect to Her Royal confirmation,
under and by virtue of the several powers and
aathoritiea in me veated, proclaim, declare and
make known, that the eastern boundary of the
diviaion of Albert ahall henceforth be defined as
eommeacixig (south) from a point (common to
the two divisiooa of Albert and Victoria) on the
amnmits of the Stormbergen, due north from
the moat easterly sources of the Witte
r> Ri^er rise, with the eame mountains ; the
i^Mindary shall then run in a directline to where
th<^ Kxaai river takes its rise in the Witte or
Orakenabergen ; from thence in a north-
westerly direction, along the summits of the
W^ittebergen, until the waters of the Wilge
River, henceforth to be known as the Teen, run
im a northerly direction to the Orange River,
the eastern bank of the Tees forming the boun-
dary of the Colony, from its sources iu the
IVittebergen *o its junction ^ith the Orange
River, which river forms the northern boundary
o€ the diviaioD of Albert and of the Colony.
And I do further proclaim, declare, and make
knowA, that all territory to the west of any
portion of the line aforesaid shall be, and the
wami Is hereby annexed to, and incorporated
with t^he Colony of the Cape of Good Hope, as
part and parcel thereof; and also, that this
whole tract, about 160 sciuare miles in extent, is
b«;reby designed and appropriated, subject to
Her Majesty's confirmation and approval, as a
*" native reserve." for the use of the Aborigines,
iM" persons of Native African descent, and that
BO farms or lands shall, unless otherwise
directed, he granted within that district to
fteraoos ot European race.
Mr. Graham for the appellant: The sum-
mooa is detective^ aa it charges the appellant
with an offence which is not created under the
section under which the action is brought, via.,
section 20, Act 27 of 1884. This section merely
points out the procedure to be taken where a
pereon is unlawfully on a location ; the Resi-
dent Magistrate seems to think that constitutes
an offence — which it cleirly does not. The
Resident Magistrate moreover was incompetent
to try the case as he was an impoitant witness.
Mr. Justice Buchanan : There is aothiog on
record to show that any objection was taken at
the trial.
Mr. Graham: In anv case it was a grots
irregularity for him to pit when the iraue in
the case was the correctness of his statements
as compared with those of another witness;
and it was an exclusion of evidence for him
to sit when it was a question of his oath
against that of another man. See Ordinance
40 of 1828 section 5 ; see also ItcgiHa v. 7amato
(6 Shell, 11). Further, the Renident Magistrate
exceeded his jurisdiction in regard to the order
which he made.
Mr. Sheil, Acting Attorney-General, for the
respondent: The summons is good in form ; the
part which charged applicant with a contra-
vention of section 2 i in mere surplusage. The
Kcftident Magistrate is alleged to have rejected
competent evidence ; but the defendant Hhould
have recu&ed the Resident Magistrate and have
had the objection noted on the record. Xoeh v.
Zackan and Jleside/U Mttt/iittrate, Van Rhyn't
Dorp (5 Sheil, ISo), No specific ground for
review is now clearly alleged. The test is not
were the proceedings irregular merely ; but
were the proceedings grossly irregular 1 If the
Resident Magistrate had given evidence he
knew well that he could not give it for the
defendant. If anything was irregular as to
not issuing summons— it was a dereliction of
duty on the part of t^ie clerk, not a grois
irregularity by the Hosident Magistrate
The district of Herechel has been reserved, and
as such is a location under section 7 of the Act
27 of 1881 {vide Proclamation, Sir Qetrge W.
Smith, August 1, 1850). Even if it is not the
matter should have come before the Supreme
Court by way of appeal not review. In the
absence of the proclamation the place where
Mama erected his house could not be called a
location by itself, but the entire Herschel
reserve (in which the site is) was at the time of
the passing of the Act of 18vH4 a location.
Mr Graham replied.
De Villiers, C.J. : I wish to remark at the
outset that the Magistrate has, in my opinion,
acted with perfect good faith. He believed
that his evidence could be of no assistance to
the accused, and he therefore refused to allow
66
hii clerk to issue process to compel his own
attendance as a witness at the trial. He lost
sight, howeTer, of the fact that, from the point
of view of the defence, the evidence was
material and necesBary. He knew that the
headman of the location asserted that he had
heen told by the Magistrate that he could allow
the accused to settle in the location. If this asser-
tion was true, then clearly the accused could
not be said to " have no right or authority to be
In the native location'* in terms of Ihe 20th
section of Act 37 of 188i, under which the
prosecution took place. It is said that the
evidence, if given, would have been adverse to
the accused, but he had a right at all events to
claim that such evidence should be given under
oath and subject to cross-examination. This is
not a case, such a» frequently comes before the
lower Courts, in which the competency of the
Court to try the case is challenged on frivolous
grounds. The accused, fortified as he was by
the evidence of the headman, was justified in
regarding the Magistrate as a necessary and
material witness for the defence. At the trial
the objection that the Magistrate had refused
to allow a subpoena 1o be served on himself was
taken and practically disallowed. After the
accused had been convicted, the headman was
charged with perjury, but he was acquitted.
All this (hows how important it was that the
Magistrate who tried the case should not have
been one who could give material evidence, and
whose evidence, if given, would, on a most
important point, have been at conflict with that
of the headman who was a witness for the
prosecution. It was a gross irregularity,
under the circumstances, to refuse the i' sue of
the process and thus prevent the accused from
objecting to the competency of the Court, or
from having the evidence recorded of a witness
whom he honestly and reasonably regarded as
being a necessary and material witness for his
defence. The judgment and order of the Magis-
trate must be set aside, but as he acted in good
faith there will be no order as to costs.
Mr Justice Buchanan concurred. The
irregularity, he said, consisted in the Magistrate
refusing to allow himself to l>e subpoenaed as a
witness. The Magistrate was a material wit-
ness in the case, and being a material witness,
ought not to have sat and tried the case.
Mr. Justice Maasdorp concurred.
[Applicant's Attorneys MeHFrs. Fairbridge,
Arderne ^^ Law ton.]
SUPREME COURT,
[Before the Right Hon. Sir Henby db Vli.-
Li BBS, K.C.M.Q. (Chief Justice), the Hon.
Mr. Justice BuGHANAM, and the Hon. Mr.
Jutftico Maasdobp.]
IN THE E8TATJE OF JOHN KVBBKTT |
ME8TAEB: THB PETITION OP J 1897.
CHABLB8 WALTEB M EST ABB j Feb. 12th.
KIBCHHOFF. f
Will — Bequest — Discrep ncy in name —
Intentiou.
A testator bequeathed by codicil a
sum (if money to " my ffodson^ Charles
Walter Meslaer^
The testator had only one godson^
whose correct name was Charles
Walter Mestaer Kirchhiff; and no
jyerson answering to the legatee*a
name was known.
The executor refuspd to pay to the
godson the amount of the bequest but
/mid the money into the Guardians'
Fund; and the Master similarly
declined to pay to the godson.
The Court ordered payment to be
made to Charles Walter Mestaer
Kirchhoff,
This was an application by Charles Walter
Mestaer Kirchhoff for authority to the Master
to pay out to petitioner, for whom it was in-
tended, the sum of £56 7s. 4d., standing to the
credit in the Guardians* Fund of Charles Walter
Mestaer, out of the estate of his godfather.
John Everitt Mestaer.
The applicant's petition set forth :
That y< ur petitioner is a son of George
Joseph Kirchhoff and Mary Ann Kirchhoff.
That at the time of your petitioner's baptiBm
one John Bveritt Mestaer, a great friend of the
petitioner V family, asked to be allowed to and
did stand as godfather to your petitioner.
That the said John Everitt Mestaer signed as
a witneFB to the said baptism, as will ap|)ear
from the copy of baptismal certificate hereunto
annexed.
That in his baptismal certificate your peti-
tioner is called Charles Walker Mestaer, the
surname of Kirchhoff lieing omitted, aa in
customary.
1. That thereafter on the 2Cth May, 1873, the
said John Everitt Mestaer executed a codicil
l)equeathing to his godson Charles Walter
Mestaer the sum of onehundred pounds sterling,
as a legacy.
6?
.^1.
1 Ibtt in tbit^ codicil aB in the baptiemal cer-
ti&cate applicant is called merely Charles
Wilter Mesiaer, \>\rt your petitioner and the
penoQ designated Gliarles IV alter Mestaer in
the aud codicil are one and tbe fame p«nK)n.
3. J\aX the e<&late of the eaid John Ereritt
Uoiaer has now been finally liquidated and
£«tnbnied with the exception of ihe pro tata
^aie wbieh is dne to the person called Charles
Walter 'Ueetaer.
Thai according to the plan of the distribu-
tiga in the estate of the said John Everitt
Uestaer a anm of about £66 78. 4d. was shown
to be dne to Charles Walter Mestaer, the legacy
of £lQoha^ng to abate to that amount owing
to there not being sufficient funds in the said
otate to pay out the legac:es in full.
That the executor in the estate of the said
John Everitt Mestaer would not pay out the
moaer shown to be due to Charles Walter
Xetaer to applicant owing to the slight diB-
ciepancy in the names, and to get over the
difficulty the money was paid into the hands of
the Master of this Honourable Coart.
That the Master aforesaid will not pay out the
BBOBey to applicant without an order of this
UoBOOiable Court.
Wherefore yoar petitioner prays that your
lordahipe may be pleased to grant an order
aoAhonsing the Master of this Honourable
Court to pay out to him the said sum standing
to the credit of Charles Walter Mestaer in the
Guardians' Fond, or for such alternative relief
as to your lordships may seem fit.
The father of the applicant stated in affidavit :
that testator in his lifetime was very fond of the
appiicaot; that he was present when the codicil
was drawn up. and that all present understood
that the bequest was to applicant; that the
testator had no other godson named Charles
Walter Mestaer.
The Master reported •'
The Eom of £55 7s. 4d. was paid into the
Goardians* Fund on the 26th February. 1884, to
the eredit of Charles Walter Mestaer by the
ezeentor dative of the estate of the late John
Everitt Mestser.
I have refused to pay this amount to the
pctitiooer without an order of this Honourable
1897.
VAN NIEKBBK V. VAQAJX. i Feb. 12th.
16th.
r. I Fel
Mr. Close moved.
The application was granted, subject to the
Master being satisfied that the executor dative
raised no objection.
[Applicant's Attorneys, Messrs. Fairbridge,
Aideme k Lawton.]
I
Evidence — Books — Refreshing Memory
— Tradesman.
In an action for a debt brought by a
tradesman itix i/eart after the alleged
debt had been incurred^ he produced
hix boohs J which had been hept by his
assistant J but he produced no proof
that the assistant was dead or ill or
absent from the Colony^ or that he
himself had read the entries while the
transactions were fresh in his
memory. The defendant admitted
the purchases but alleged that they
were paid for at the time when made.
Held that the evidence was insuffi*
cient to prove the debt*
This was an appeal from the decision of th«
Resident Magistiate, Tnlbagh, in an action in
which the appellant, Henry Fagan,8nedthedefen*
dant, Jacob van Bcnen van Niekerk, for the sum
il9 7b., being £5 for goods sold m 1890 and 1891,
by plaintiff himself, and £4 78. for goods in the
estate of the late H. A. Fagan,8old to defendant
at public auction.
The defendant pleaded (1) the general ibsue ;
(2) that he had duly settled any indebtedness
for goods which he might have got from defen-
dant.
At the hearing before the Resident Magistrate
the plaintifl: produced the original day books
and ledger in which the entries in regard to
ths £6 claim were entered. The plaintiff stated
that the shop books were kept by his assistant.
He had called on defendant to produce his
receipts, which he was unable to do. He stated
that in 1892 he fell ill, and since then hod not
been able to attend to his business, and that in
consequence he had not since then been
able to call in outstanding amounts due to
him.
The assistant who kept the books was not
produced as a witness, nor was any evidence led
as to where he was.
The defendant stated that he paid for all
goods within a month of the dates of purchase
and obtained receipts. He never bought om
credit The goods purchased at auction might
have been purchased by his brother, but he had
not instructed his brother to purchase for him
nor had he received the goods.
68
Jadgment was given for £4. %. with cofitsi
abBolutioD from the iiiBtaoce being given in
rcBpect of £4 ISs.
The following were the Resident Magietrate^B
reasons :
In giving judgment the (Jourt came to the
following concluBion:
1. That although evidence was ltd on behalf
of the defendant fur the purpose of throwing
discredit on the books kept by plaintifiE, in
certain cases (never sued upon) the Court held
that the books were not altogether unreliable.
2. That the entries appearing against the
defemdant in this case appeared to be genuine.
3. That as the defendant admitted receiving
most of the articles in the shop account, but
failed to proiiuce a receipt and could not even
remember to whom the money was paid, the
weight of evidence was in favour of the plain-
tiff.
4. That absolution from the instance was
given on the ground that ao evidence was pro-
ducc<l t-o prove the cession of the vendu roll in
support of the item £4 7s., nor that defendant
instructed his brother to purchase the bag of
oats on his behalf for I Is., thus failing to prove
agency.
Against this decision the appeal was now
made.
Mr. Schreincr, Q.C., for the appellant: In
this Court we do it is true pay great attention
to properly kei)t books ; but they are not by
any means prima facie proof.
The Chief Justice : Yes, but doei^ the law of
Holland apply or is it supers«dedby the English
law of evidence? The question has never been
properly discussed here.
Mr. kJchreiner: In the tirnt place the books
are faulty in numerous instances, and the faith
given to a merchant's books implies that they
are carefully and accurately kept. Van
Leciifccn (Roman-Dutch Law, 5, 20, 11). More-
over, the practice has in our Courts been to go
in the opposite direction to the rules in force in
Holland, and though judgments under Rule
329 are often given practically upon the books
they yet are not specifically so.
Mr. Innes, Q.C., for the respondent: We can-
not contend that mere production of the books
will have the effect that it would have had
under the old law of Holland. But the books
are important evidence. The books once sworn
to by the person who made the entries are
evidence, so also if the owners swear feo their
correctness.
The Chief Justice : Declarationn in the
ordinary course of business made in books are
evidence, but only when the maker is dead.
Price V. Tarringtm (1 SaZk, 285).
Mr. Innes : Our practice has been simply to
wear to the correctness of the books. If the
English law prevailed, we would have to prove
not only the sale but ihe delivery. No objec-
tion was taken to these books being put in.
Mr. Schrriner in reply refen-ed to Vol. I.
Mcnziett (prefatory remarks on Provisional
Sentence, section 6, page 7) ; Best (on Kvidenco,
p. 442).
CA.V.
Postm ( February 16th.)
The Chief Justice, in giving judgment, said :
This action was brought in the Court below by
a shopkeeper to recover the amount of a debt
alleged to have been incurred as far back as
1890 and 1891. In proof of the debt the plain-
tiff produced his shop-books which had been
kept by his asBistant, but he did not call ihe
ak>siBtant to prove the correctness of the entries,
nor did he produce any proof that the assietaat
was dead or could not be found. Acoordin^ to
Van dcr Linden (Inst. B. 1, C. 17, section 2) the
books of merchants were admissible as evidence,
accor Jing to the law of Holland, provided they
were properly kept and confirmed by the oath of
the merchant. In support of this view he refers
to Voet '22, 4, 12), who says that, in favour of
commerce, the rule had been introduced that the
books of merchants, containing debit and credit
entries, constitute semi-full proof, and when
confirmed by the oath or death of the merchant
constitute full proof of the balance of his ac-
count, provided he be a man of good fame and
reputation. The difference between plena and
ieiniplen i probatio is practically obsolete in our
law, and accordingly wo find that the Dutch
rule has not been maintained in our Courts
In the case of OC(f*meU v. Stauder
(8 Mensies, 389) it was held in this
Court in the year 184L that a plaintiff mer-
chant's books, verified by his oath, are pgr se
insuflicient to prove the balance of account
claimed by him. It should be borne in mind
that, at the date of that decision, parties to a
suit were not competent to give evidence as
witnesses on tneir own behalf, and that the caee
is, therefore, no authority for holdisg that>
since the passing of Act 4 of 1861, a merchant
cannot prove the correctness of his books by his
own evidence. But the rule established by the
37th section of Ordinance No. 72 still holds that
" every party on whom in any case it shall be
incumbent to prove any fact shall be bound to
give the best evidence of which from its nature
such fact shall be capable." If the assistant
who made the entries in the plaintiff's books is
still alive— and there is no proof that he is not —
hia evidence that the books have been duly kept
and all credit sales duly entered at
59
t^t time wben tKe BAles were made
0^ wbile the tr&n.B«totion8 were fresh in
lui memory m-ould l>e ^lie l>eB^ evidence of which
^MBefidB are c&p&\>le. He would, therefore,
becstiUedto refresli YlI& memory by referriDg
tothehookB. If lie were dead bi£ entries made
utheofdinmry oourae o£ liusiness, at or near
the time wYien. tlie B&lee were effected, would be
endenee in the cuse. dit without proof of the
■■ictani'i de&tli -tlie plaintiff produced the
hofkA. If tbe plflkixitlff coald have sworn that
the entries were read Xty liioa while the trans-
trtioa» were treah in Ills memory, and that
whcA be read tbem he Ivne^w them to be correct,
he would also have heen entitled to refresh his
memory by reierring to the books, but evidence
to tlda effect is wanting. It is said that the
Asustaat, \1 called, would have been an
adTeiee witneaa, but that was no reason
for diapmaing with hi§ evidence. It
ia po a\\>\e lo conceive of cases in which books
iikig;bt be admitted aa evidence, without calling
the penon who kept them, although he he alive,
bni tbe pre&ent ia certainly not such a case.
There is no complication in the accounts, the
^etnand is a stale one, the assistant who kept
the books is not even proved to be ill or absent
irom the Colony, and the debt appearing in the
booka is entirely denied by the defendant. Af t«r
the evidence for the plaintiff had been given,
the Magistrate would have been quite justified
ra granting absolution from the instance. This
was cot done, and if the defendant, on cross-
examination, could have been made to admit
the debtt the Court would rightly have given
judgment for the plaintiff. But the defendant,
while admitting that he had bought most of
the articles feued for, stated that he paid for
them at the time they were purchased. That
wonld sofhciently account for his not producing
reoeipts for his payments. But even if the
aaltA had been on credit, it is unreasonable to
expect a customer to keep leceipts for pay-
menta made by him six or seven years after
payment. A tradesman has himself only to
blame if he delays in enforcing his claims until
he can himself no longer produce the best
lee in support of them, or until his
may fairly be expected to have lost
destroyed the vouchers which could have
disproved the claims. Upon the evidence in
the Court below judgment ought not to have
been given for the plaintiff, and the appeal
mmt therefore be allowed, with costs, and judg-
meoi of abeolution from the instance entered,
with coets, in the Court below.
BmOiBnan, J., and Maasdorp, J. concurred.
Appeal allowed accordingly with costs.
[Appellant's Attorneys, Messrs. Walker k
Jacobsohn; Respondent's Attorneys, Messrs.
Tredgold, Mclntyre Sc Bisset.]
SUPREME COURT.
[Before the Right Hon. Sir J. H. dk Villieks,
P.C, K.C,M.a. (Chief JiiHtice). Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp. J
FORBEST AND CO. V. STAGLER.
f 18D7.
I Feb. 15th.
This was an action for breach of contract.
The plaintiff's declaration nlloged that plaintiti:
is a miller residing at Uondeboscli, and carrying
on business under the style of John ForrcBt &
Co. The defendant is ii tailor and produce
dealer at Venterstad, in the Cape ('olony. That
in August aud September, IS96, the plaintiff
supplied and delivered to defendant at liis
special instance and reijuest Hour, meal, aud
mealies to the value of £54 Ds. ad., and paid
railway carriage on them to an nnioiii»t of
Jiii7 88. 5d., as shown on the account annexed to
the declaration. That in October, lSL<r., the
plaintiff further supplied to the defendant Hour
and meal to the value of .CVJ 17f., and paid
railway carriage and charges to an amount of
£17 138. 6d., also uhown on an account aiiuexed.
That the terms and conditions of the naid sales
were that the defendant should pay cash and
railway charges. That the delendnnt did nor
pay cash in accordance with the terms of sale,
and after the gooils supplied in August and
September had been delivered the plaint ill'
stopped the actual delivery of the ^oo(h supplied
in October, wliich were in the bauds of the rail-
way authorities at Norval's Tont, whither his
goods had been sent in due couixe, and that the
goodi* were lyiug at the said railway station at
defendant's risk and expense. That the defen-
dant refused and neglected (and still does ho) to
pay the purchase price and railway clinrges.
The prayer of the declaration was that
defendant be ordered .(1) To pay plaint ill' the
sum of £71 78. 7d. ; (2) to pay the sum of
£77 10b. 6d., he t<jndering to hand over the
goods at Norval's Pont;(:])to pay interest
a tempore monc] (4) with alternative relief and
costs of suit.
Mr. Tredgold appeared for the plaintitf, de-
fendant being in default,
60
John Forrest stated that he carried on busi-
ness at Rondebosch under the style of J.
Forrest & Co. The defendant had communi-
oatad with him by letter, and in September last
witness supplied him with goods amounting to
£64 9b. 2d., the railway charges bemg £17 18s. 5d.
A further consignment was forwarded in
October amounting to £69 17s., the railway
charges in this case being £17 19b. 6d. Witness,
not having received payment for the first con-
signment, stopped the second at NorvaFs Pont,
and gave instructions for the sale of the goods
there, the defendant being at the same time
notified that the goods were lying there at his
risk. He recei'^ed £68 los. from the sale of the
goods, but he was put to further expense in
r^^ardto correspondence and telegrams. The
tot il amount claimed was £84 8s. 7d.
The Court gave judgment for £84 8s. 7d. with
costs.
SUPREME COURT.
[Before the Eight Hon. Sir J. H. db Villiebs,
P.C, K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdobp.]
COLONIAL GOVBRNMENT V. GEBTEN- l 1897.
BACH*8 EXECUTOB. \ Feb. 16th.
Expropriation — Laud — Transfer.
Held, f « an action instituted hy the
Oovernment to compel transfer of
certain land in Port Elizabeth,
which had been expropriated for
railway purposes under Act 19 of
1874, that the executor of the estate
of the person whose land had been
expropriated was bound to pass
ti'ansfer.
This was an action to compel transfer of cer-
tain property at Port Blieabeth, expropriated by
the Railway Department in 1877.
The declaration alleged that in the year 1877
the Colonial Government, under the powers
conferred upon it by Act 19of 1874, expropriated
for railway purposes a certain piece of land
situate at Port Elizabeth, being lots Nos. 8 and
4, sub-division of lot No. 60 of section F of the
Jennings estate, measuring fifteen square roods
andfoity square feet, registered in the name o£
C. J. Qertenbach.
That the Colonial Oovernment being unable to
agree with Qertenbach as to the amount of corn-
pen ation to be paid for the land ao expro-
priated, it was agreed between the GoTernment
and Qertenbach to submit the matter in dispute
to arbitration in terms of Act 9 of 1868 and Act
19 of 1874, and for that purpose the Colonial
Government and Qertenbach signed a deed of
submission, under which two arbitratora were
appointed, one on behalf of the Qovernm«*nt,
and the other on behalf of Qertenbach.
That there was a difference of opinion be-
tween the arbitrators as to the amount of com •
pensation which should be awarded to Qerten-
bach in respect of the said land, and in terms of
the deed of submission they called in as umpire
one Joseph Simpson, who thereafter duly
published his a*vard, under which he awarded
Qertenbach £26 (which amount had been ten-
dered to Qertenbach by the Government before
the execution of the deed of submission and
refused by him) as the full value of the land
expropriated, and ordered Qertenbach to |my
the costs of the arbitration.
lliat the costs exceeded the sum of £26, and
on Qertenbach*s refusal to pay the costs they
were paid for and on his account by the Colonial
Government.
That on the publication of the award the
Colonial Government entered into possession of
the land expropriated, and have since that time
remained in possession.
That, though frequently requested during ills
lifetime, Qertenbach wrongfully and unlawfully
refused to pabs transfer to the Government of
the land so expropriated, and since his death
the defendant, though frequently requestetl,
refused to pass transfer.
The prayer was that the defendant, in his
capacity, should be ordered to pass transfer in
dae and customary form of law, the plaintiff
tendering to do all necessary acts to obtain
transfer, alternative relief, and costs.
The defendant in his plea admitted the ex-
propriation and the execution of the deed of
submission. As to the other allegations in the
declaraticn, he alleged that he had no
knowledgi>, save that he admitted that the
Government has been for many years in poaaea-
sion of the land, and that he refused to reoogniae
any obligation to pass transfer. He put the
plaintiff to proof of the remaining allegationa
in the declaration.
He specially pleaded that the plaintiff was
not entitltd, in terms of Acts 9, 1868, and 19,
1874, or either of them, or at all, to claim from
61
W liwttier oi lY^e l&na ; but that if the
#«^t w^re at «.\\, cktler tlie lapse of so many
T«K,(fitiUed U> trflkVkfifer Cwbich he did not
^\\>\ be shoulfl prove liis title thereto in
IKm^uoewitli tHe Derelict JLfBnds Act, 1881,
tottKBattt{«ct\oi& ol flkSiidge, and afterwards of
theCwrt,«xic\k proceeciii&ss being taken at his
oncost.
He loiiheT &f>ec\aUy pleaded, if the above plea
were deemed \iiBuflicleiit« but not otherwise, that
tiie plaintiff wfliR not entitled to claim transfer
of the land without tenderioK to pay all costs
incorred \n connection with f?i t i ng such tra ns-
fer, and \ie said that no auch tender had been
made by t\ie plaintiff in thia suit.
The replication waa general, save that it
allied tbat the plaint ifi was, and always had
been, ready and willing to pay whatever costs
mi^t be incarred by the defendant in passing
tranaler of the land in due and customary form
of law, aa the defendant was well aware.
laaue was joined on these pleadings.
Mr. Shell, Acting Attorney-General, with him
Mr. Biaaet, appeared for the Qoyemment.
Tine defendant was in default.
The following evidence was led for plaintiff :
D* Urban Dyaaon, senior partner in the firm of
Meaara. Dyaaun, Haaell & Wilson, attorneys
for the GoTemment at Port Elizabeth, raid that
in the year 1877 the firm, which was then styled
Dyaaon Sl Carlisle, were acting for the Qovern-
ment. Witness received instructions for the ex-
propriation of certain part of the Jennings
kte, and carried out the preliminaries of
expropriation, and also drafted the deed of
■nboiiasion. The award of the umpire was sent
to the Railway Department and subsequently
Koi mislaid. A letter was sent to Gertenbach,
with a copy of the award, on May 14, 1877. A
eertsun Thomas O'Brien was Gerten-
liach*8 agent and attended the arbi-
tration on behaK of Gertenbach.
Witaesa made frequent application for transfer
for about two years, but O'Brien continually
pat him off, and finally told him that Gerten-
Imefa had withdrawn his power. Witness at-
tended the arbitration on behalf of the Govern -
and the amount of compensation awarded
£25^ Gertenbach being ordered to pay
the coeta which amounted to over £25.
At the time the property was expropriated,
property had not risen in value at Port
Blizabeth, but the same land, if expropriated
now. would fetch about £1,000. The Govern-
ment took poflBeasion of the land, and a line of
laHway now ran through it. The executor lived
at Uiteohage, and had only recently been ap-
poioted.
As the original deed of submission could not
be found a copy was put in from which it
appeared that the parties agreed to go to arbitra-
tion on the basis of an out-and-out sale and
purchase.
Mr. Shell, Acting Attorney-General, for the
Government: The first defence raised in this
case is that there is no obligation on the defen-
dant to paps transfer either under Act 9 of 1868
or Act 19 of 1874.
It is true that there is no express provision on
the subject in either of these Ac»«, but expro-
priation is a forced sale, and the mere fact that
it is a forced sale does not deprive the buyer of
his ordinary common law right to demand
transfer of the property bought under the
statute.
A very clear indication that expropriation is
a sale is afforded by the language uied in
sections 12 and 13 of Act 9 of 1858. In both these
sections tne words " purchase " and " purchase
price " are used, and these terms show that the
transaction must be regarded as a sale, subject
to all the incidents of a sale, and that the
statutory buyer is not deprived of his ordinary
right to claim transfer. See Laivdniarh v. Van
der Walt (S Juta, 306).
In England it has been held over and over
again, under the Lands Clauses Act (1845), that
notice by a railway company to take lands under
their compulsory powers and the subsequent
fixing of compensation by arbitration together
constitute a contract of sale and purchase which
can be enforced against either party by an
action for specific performance. Bee Dnrham v.
Crackles (32 L.J., N.8., 111); Harding v. AMro-
jfoUian Railway Co. (41 L.J., N.8., 371); /» fe
PigoU and the Great Wetdem Raihray Co,{\%
Ch. Div., 146).
The Chief Justice: Does the question not
depend upon the intention of the parties in
goluK to arbitration ? In other words, did the
parties arbitiate upon the basis of an out-and-
out purchase and sale, or was a servitude only
bought ? The point was discussed ia Claytofi v.
Metropolitan cftd Suburban Ra Ifvay Co, (8
Shell, 405; 10 Juta, 291).
In this case the parties arbitrated upon the
basis of an out and out purchase and sale. See
the terms of the deed of submission.
That being so, ( layt&n'g Case is clearly in our
favour. A lurther indication is afforded by the
fact that the umpire only awarded Gertenbach
the amount which the Government had tendered,
viz., £25, and gave costs against hini.
The Court gave judgment in terms of the
prayer of declaration, the Government to pay
I
62
the 006tB of transfer; in case the defendant
Bill refused to pass transfer after the order of
the Court, the Slicrill: whs authorised to pass
transfer.
[Plaintitf's Attorneys, Messrs. Reid &
Nephew.]
SUPREME COURT-
Before the Riglit Hon. Sir J. IT. dk Vjllikrs,
P.C., K.C.M.G. (Cliief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
MAASnOKP.]
PROVISIONAL KOLL.
MAri'HKWS V. DK SWAKT. j y } "Vj^..
Mr. Tredgold applied for provisional sentence
on a promissory uott; for £22, and also for judg-
ment for iilfi 178. (Jd., under Rule 329.
Granted.
KRYNAUWS EXECUTOIW V. SKDAN.
Mr. Ma»kew applied for provisional sentence
on a mortgage bond for CUV\ and also for £6
9s. 4d. on a taxed bill of co^ts arising: out of
previous proceed iugs. and that the property be
declared executable.
G ranted.
THE MASTBK V. COOKK'S KXECUTOR.
Mr. Sheil applied for pre visional i^entenco for
the sum of C500.
Granted.
ILLIQUID ROLL.
BAKER AND CO. V. DK VILLIEBS.
Mr. Buchanan applied for judgment under
rule 329 for £14 13k. 2d., due for gooils sold and
delivered to the defendant's wife.
Granted.
GENERAL MOTIONS.
IN THE MAITKR OF THE PETITION OP BAREND |
MEYER. I
I
Mr. Graham applied for an order making
i^bsolute a rule nhi for re^istratioa under the
Titles Registration and Derelict Lands Act of
certain property in the name of the petitiomer
Granted.
IN THE MATTER OF BBEDLE AND CO., LIMITKD.
Mr. Buchanan appeared to present, and
applied for confirmation of the second and final
repoi*t of tho liquidators.
Th» Court granted the usual order.
IN THE INSOLVENT ESTATE OF WILLBM
ADOLPH HAUPT.
Mr. Graham applied for authority to the
Master to call a special meeting of the creditors
for the election of a trustee in the room of one
deceased.
Granted.
IN THE ESTATE OK ACHMAT MAHED.
Mr. Buchanan applied for authority to raise
a sum of £.C/.0 on security of the landed pro-
perty in the estate, and that this sum, together
with £300 to the credit of the estate in the
Guardians' Fund, may be expended on certain
works in connect'on with the estate required by
the Town Council, and also that Mr. Tonkin
may be appointed by the Court to administer
this money.
Granted. The payment of the money to be
subject to the production to the Master of
tenders for the execution of the work.
FOURIB V. MAPrlSTRATK OF WOR- ( 1897.
CE8TER AND TH ACKER. \ Feb. 18th.
Private pro.«?ecu!iori — Public Prosecu-
tor — Certificate — Declining to pro-
secute — Appearance by counsel or
agent — (.'ommittal tor trial —
Preparatory examination — Sum-
mary trial.
A jRe.si'flent Magistrate cannot con-
vert a anniwainf prosecvtion at the
instance of a private party into a
preparatory examination to be cou-
dvctetl //// and at the expense of such
private prosecutor, itnless there he
produced to the Mogixtrate a cer-
tificate, under the hand of the Public
ProsecfUor to the effect that he
declines to prosecute for the offence.
The right to conduct a private pro-
secution implies the right to appear
in Court by counsel or agent.
6^
Tikis wutn applioAtioix upon a notice of
BM&n etlUng on tlie reepoiKients to show
oHHivhy ui order in tlie nat;ure of a maDdamus
MA Mi be srantetl direciinc? the Acting
Bflddeai Magistrate to entertain and admit a
fffiDAlftpplicatioii in the Resident Magistrate's
GoQit, Worcester, made l>y the above applicant
tobeiUowed\es«kl assistance Qhy a dulj' enrolled
i«esto£ibe aaid Court) »n proeecuting the
n^ODdentTbacker for perjury in a trial com-
aeaeed la that Court at tlie instance of appli-
ctttoatheUh Febroary, 1897. At these pro-
cttdiogB applicant's request for lesral assistance
wasiefneed and the present order was asked for
OB tHe groimd that tbe refusal was bad in law.
The proceedings^ in tbe Resident Magistrate's
Court were i- itiaied by a sumuionH against
Thacker Icr periury, taken out by Fourie.
Ob tbe day of hearing;, bowever, the Jvcsident
Magistrate instead of trying the case mm-
marily commenced to take a preliminary ex-
amination. M.r. Home appeared for the ac-
c«cd«and M.r. Shaw, a daly-«nrolled agent,
appeared for the complainant; whereupon the
attorney of the accused objected to the agent
far tbe complainant aaeisting in the prosecution
or taking any part wbateYer therein, he having
w» locMi standi nor any Bubstantial or peculiar
iatereat in tbe ieene arising out of any injury
wbi4^ be individually had suffered ; contending
thai this was a private prosecution by
Fourie, who as the Bummonp set forth '' prose-
eatea in hie own name and on his own behalf,"
and tbat he alone could appear.
Tbe exception was upheld, and a postpone-
n«Bt of the trial was granted to allow the com-
plainant to apply for such an order as that now
for.
the affidavits, it appeared that in
1896, Fourie was prosecuted for a breach
of ooe of the railway regulations, and was con-
The prosecution was instituted and
by Mr. Thacker. Hhief Constable of
; that in October, lSi)% Mr. Fourie
Mr. Thacker and another civilly in the
Cixvait Court to recover damages for wrongful
arrest ; that Thacker gave evidence ; that sub-
■e>ioently in consequence of certain information
applicatir n wa? made by Fourie to the Attorney-
General to have proceedings instituted for
perjuo' against Thacker. A reply was received
from the Secretary to the Law Department
statins, with reference to the request for
wamuBfs to he issued against Thacker and
otlierB : " I am directed to inform you that the
Attomey-Oeneral is not prepared to interfere in
tbe luMtter." Subsequently an application was
oiade hy Mr, Fourie 'b agent for the power of the
JMoFBef-Qenenl to prosecute. The reply wag
that, as the Attorney-General was informed
that the prosecution was a private one, and that
a summons had alrea-iy been issued not at the
instance of the Crown, the Attorney-General
declined to grant the power asked for.
When tbe Magistrate iuti muted, on the case
being called on, that he intended to take a pre-
liminary examination, no objection was raised :
and tbe Retidcnt Magi trute held that, in termn
of Ordinance 40 of IS2S, the witnesses sh. uld be
examined by the Majiistratc alone ; and that
there is no provision in tlic law of the Colony
for legal advisers to act forthccoiupltiinantina
preliminary examiuatiou. The summons and
subpwnas all set forth that the prosecution was
a private one. After the inelimiuary examina-
tion was begun the coinplainaDt a])plied for
the issue of a subpcuua for a further wituctfs,
but the Clerk of the Court relumed to issue it
unless the ordinary fee were paid on the ground
that it was a private pro^ecution.
Mr. Tnnes, Q.C., for the applicant.
Mr. Shell (Acting Attorney-General) for the
Acting Resident MuKl-trate.
Mr. Graham for the resnondent Thaeker,
Mr. Innes: This application is properly brought
before this Court for an order in tlie nature of a
mandamus. The (luestion is as to whether the
applicant should not have been allowed the
services of an agent at the proceediugp.
Mr. Justice Buchauau : Sliould not the pro-
ceedings have been betruu properly by the tiling
of aftidavits ?
Mr. InncK: Lc Sfft-tn' v. ^Vvn*// (Bucli. 77, p.
115) shows that our |)roce(lure was quite regular.
Brv/rn v. Ifmhoii (liuch. «{», page 170) guided
the procedure which the applicant has adopted
in this case, althou^'h that wa- a civil case and
this is a criminal one. In each ca?e the liesident
Magistrate refused to allow plaint itf to appear
by an agent. Ordinance 40 of 1828 places all
public prosecutions in the hands of the Attorney-
General. But under sections 13 and 14 private
prosecution.-* under certain circumstances may
take place. The applicant certainly had not the
certificate provided for in section 14, but Ordi-
nance 73, f-ection 6, diKpenses with the certilicate
in certain cases.
The Chief Justice : Once the private prosecu-
tion is turned into a preliminary examination
is not the prosecutor then bound to get the cer-
tificate of the Attorney-Ciencral ?
Mr. Innes : The Resident Magistrate has not
decided that this is a case for a public pro-
secution, i.e,f one where the Resident Magistrate
//rw«t refuse to allow the private prosecution to go
on unless the certificate of the Attorney-General
18 produced. The Resident Magistrate haa
not taken the course laid down in section 7 of
64
Ordinance 73. Even after taking the course he
did, in turning the proceedings into a prelimi-
nary examination, he still continued to treat the
matter as a private prosecution.
The Chief Justice : His duty was to stop the
proceedings, seeing what a serious matter it
was, in terms of Ordinance 73, section 7.
Mr. Innes : But the Resident Magistrate has
a certain discretion in the matter. He might
have stopped the private prosecution, but he
has not actually done so.
Mr. Justice Maasdor]) : Ordinance 73 of 1830
only allows the issue of summons without the
oortificate in cases where the prosecution is a
summary private one; the moment it becomes a
preliminary examination, section 6 does not
apply.
The Chief Justice : Can a private preliminary
examination be held till the Attorney-Qeneral
refuses to certify ?
Mr. lanes: See aection 14, Ordinance -iO of
1828, and Le Snettr v. Geary (Buch p. 77,
115). It was never argued in the latt«r case
that there could be do such thing as a private
preliminary examination. As Mr. Cole there
said, it is only after the preliminary examina-
tion is sent to the Attorney -General that the
Attorney- Geniral gives his certificate, and then
the Attorney-General by section 14, Ordinance
40, has to endorse on the hidictm^nt his refusal.
But that means that it is not until the indict-
ment is naturally drawn that the certificate is
re<iuired or is in question. The objection taken
by Tbaokcr and the Resident Magistrate was
simply that it was a ])rivate preliminary
examination.
The Chief Justice: Yes, but it comes now
before this Coirt, and the Court must eee that
proceedings are proper.
Mr. Innes : Section 5 ot Act 15 of 1864 shows
that before a private prosecutor can bring a
person for trial before the Supreme Court, the
prisoner must have been committed for trial,
and the Supreme Court on the application of
any party interested may order the Resident
Magistrate to take a preparatory examination.
Why was the proviso "a»y person interested "
(other than Attorney-General) put in, in line 14
of section 5 ? Surely to allow private prosecutors
to come before the Court to get an order requir-
ing the Resident Magistrate to ocmmit a
prisoner for trial, the law contemplating that a
man could take all the preliminary examina-
tion steps privately.
The Chief Justice: Probably a private pre-
liminary examination can take place, but can
that be done till the certificate is produced ? Is
there any other section in our law than section
7 which allows private prosecutiox without
certificate ?
Mr. Innes : Apparently not. Moreover there Is
no express provision entitling a private prosecu-
tor at any stage of a prosecution to be repre-
sented by an agent. Ail other cases we admit
are provided for, e.y., the Attorney-General may
appear in public prosecutions by his deputy. The
parties in civil suit can appear by their \egBl
advisers, and so also persons charged with
criminal oifences can under section 45, Act
20 of 1856, be represented in court. But there is
no express provi^ion for legal advisers appear-
ing in jfrirafc prosecutions. The Itebident
Mairistrate appears to think that this cannot be
done except by express statutory p ovision.
But the Resident Magistrate is in error, the
converse is the correct rule, /..-., we contend that
every person is entitled to be represented by a
duly enrolled agent unless the law prohibit* it.
It is not correct to hold, as the Resident Magis-
trate does, that only those are entitled who are
authorised by law. Common law does not deal
with private prosecution. There are no private
prosecutions by common law, but there is no
provision that agents cannot appear in any case
whatever. Voet (48, 1, 2) supports our contention.
Wherever there are enrolled agents they surely
arc qualified to appear for anyone who is
legitimately Lefore the Court. On every ground
of law and convenience the Resident Magistrate
was wrong.
[The Court intimated that they only wished
to hear counsel on thin point: Supposini? the
Attorney* General does give the certificate is the
Resident Magistrate right in refusing to allow
the prosecutor to appear by his agent ?]
Mr. Shell, Acting Attorney-General, for the
Magistrate: Express provinion is made in
the law for allo-Ting any person charged with a
criminal ofi:ence to make his defence by counsel,
attorney, or agent. See Act 20 of 1856, section
45, and even now on a preliminary examination
he may have legal assistance; Act 17 of 1874,
section 13, repealing Ordinance 40, section 39.
A plaintiff or defendant in a civil case may
have legal assistance. See Act 20 of 1856,
Schedule B, Rule 13.
Except in certain specified cases no provision
is made in the law for allowing a private
prosecutor legal aFsistance. See Rules 68, 69, 73,
and 74 of Schedule B. But see Act 40 of 1889,
section 56, and Act 38 of 1884, section 7.
In private prosecutions there is no necessity
for professional assistance as the examination
is practictlly directed by the presiding Magis-
trate, who will be careful to see that there is
not a misoarriage of justice.
65
^. Qnham, tor t^tim respondent Thacker,
i^ciRdio8ecii<m8 15 sbnd '^O of 1828. In aoy
Wfi^liUie agent vrisliecl 'to appear he should
Wt8 put in Ilia power.
DeYilliere, C.J. s By tlie common law of this
coantiyallcnmlikal proi«ecu.tioii8 luustbecon-
<^«i by a p\Lblic pros eco tor. A private
iatfiTidoal, wbo under tlie B.oman law had the
ngiit to proeecute in liis own name, could in
floUtadonly lay Ykie complaint before the proper
pablic official wboee dnty it became, upon auffi-
cieai eaoae a\io^m, to conduct the prosecution
rnbehaU oi tbe &tate : aee Voet (48, 2, 18). In
ISS^however, it was enacted in this colony, by
Ordinance ^o. 40, aection 13, that where the
pabUeproeecutor declines to prosecate, it shall be
«xnpeieatloT any private party, who alleges
that he haa aoffered in3nTy by any crime or
oSeaae, to ptoeecate the offender in any com-
petent Court. The 14:th section farther pro-
^idea tkiat it ahall not be competent for snoh
pnvatft party to obtain the process of any
Court for smnmoning the alleged offender
withontthe prodnction, in the higher Courts.
o€ a certificate onder the hand of and sub-
scribed by the Attorney-General to the effect
that he declines to proeeoute, and, in the lower
Ccarta, of a similar certificate from such
other officer as is by law entitled to prosecute
therein at the pnblic instance. The latter part
of this section was modified, in 1830, by the 6th
■eetion of Ordinance No. 73, which dispenses
vilh the necessity of a certificate in cases of
aantmary prosecution by private persons in
in£etior Conrta. The 7th section, however,
enacts that where, in the coorao of such a
i mwiar y prosecntion, it shall appear that the
crime or offence is, from its nature or magni-
tode, one which ou?ht not to be prosecuted at
the instance of a private party, until the
public proeecntor shall have exercised his
discretion, the Magistrate shall stop all further
praeeedhigs nntil the party prosecuting shall
predaee snch a certificate as has already been
naentloned. The proviso to this section shows
that it was not intended by this section to alter
the lair which requires a Magistrate, in the case
of any crime which from its nature or magni-
tade 18 more proper for the cognizance of a
■■perior Court, to stop the trial and commence
a pieparatory examination. The first question
wh jeb mm arises is whether, after a Magistrate
bme decided, in the case of a summary pro-
•centjoa for perjury, at the instance of a
prirmtepmrty, that the crime is one which from
/to oatore or msgnitude is more proper for the
eoKttimeoee of a aaperior Court, he can com-
meotie a prepnrAtory examination to be
eaBdueted by «nd ^^ **** expense of such
private party. The Ordinance No. 73, it should
be observed, does not expressly enlarge the
right of private individuals to prosecute in
superior Courts. It allows them to prosecute
summarily in inferior Courts but requires the
Magistrate to stop the proceedings in the event
to which I have already referred. If a crime is
of such a nature or magnitude that a prepara-
toiy examination must be taken, it would seem
to follow that it is of such a nature or
magnitude that it ought not to be pi*osecuted at
the instance of a private party without a certi-
ficate from the proper official. The preparatory
examination forms part of the proceedings of
a prosecution, and therefore if a private party is
allowed to conduct the preparatory examination
he is allowed to conduct part of the prosecu-
tion. Without a certificate from the public
prosecutor such as I have mentioned a private
party ought not. in my opinion, to be allowed
to conduct such a preparatory examination.
The next question is, by whom should such a
certificate be given? In ray opinion, seeing
that the preparatory examination can only be
taken with a view to a prosecution in the
higher Courtf, the certificate should be given
by the superior public proseoutor, such as the
Attorney-General or Solicitor-General, as
the case may be. Without such a certificate the
Magistrate should not allow a private prosecutor
to conduct the preparatory examination as part
of a private prosecution. In the present case a
letter addressed to the private prosecutor by a
clerk in the Attorney-General's Office is forth-
coming, but that is not sucb a certificate as the
law requires. The object of the present
application is to compel the Magistrate to
allow the private prosecut-or, Fourie, to be
represented by his agent in the conduct of the
preparatory examination. In the absence, how-
ever, of a proper certificate from the Attorney-
General I am of opinion that the examination
ought not to proceed. It follows that the order
asked for cannot be made. It is reasonably
clear from the affidavits that there will be no
difficulty in obtaining a proper certificate from
the Attorney -General, and it is well, therefore,
that the Magistrate should know what, in the
opinion of the Court, would be his duty in
regard to the admission of a law agent to
conduct the examination of the witnesses pro-
duced at the preparatory examination, in case
he should still be of opinion that such
examination must be conducted at the instance
and expense of the private prosecutor. In my
opinion the privilege to conduct a private prose-
cution implies the right to appear in court by
counsel or agent. It would in many cases be a
uselets privilege if the law were otherwise. An
66
ignorant penon is charged with an offence and
convicted. He Bubsequently disooven eyidence
which proves to big satlBfaotion that the
conviction was obtained on perjured evidence.
He may not in the first instance be abletoinduce
the public prosecutor to take the same view of
the case, but in order to lay his case properly
before the Magistrate with a view to a
committal of the alleged offenders for trial, he
wishes to be assisted in court by his legal
adviser. I do not say that the present is sich
a case, but cases of that nature may arise. In
the absence of any express prohibition by law, I
am of opinion that the right to appear
by agent must be held to exist. It is
necessary for the proper conduct of the
proceedings that the Magistrate should have
the evidence brought before him in such a form
as to enable him to decide, in terms of the S5th
section of Ordinance No 40, whether or not there
are sufficient grounds for putting the accused on
trial. If the examinations are transmitted to
the Attorney-General under the 43rd section, it
is important that he should be in a position to
decide whether, notwithstanding his previous
certificate, the case is not one for a public prose-
cution. The obstacles in the way of a private
prosecution are so groat that it is impossible to
expect a private and unlettered individual
iucoessfttlly to encounter them without legal
assistance. While, therefore, refusing to grant
the mandamus nrayed for, the Court wishes an
intimation of its opinion to be made to the
Magistrate.*
Mr. Justice Buchanan : The Magistrate did
not, as he ought to have done, stop the summary
proceedings, and say that the prosecutor had no
right to go further until the certificate of the
Attorney-General was produced, and he was
wrong in considering the case as a preliminaiy
examination under the circumstances. I
quite agree that the prosecutor had every right
to be represented by a legal adviser. It is .a
common rieht which, unless expressly taken
away, a person should not be deprived of.
Mr. Justice Maasdorp concurred.
I, Attorney for Fourie, D. Tennant, jun. ;
Attorney for Ihacker, C. 0. Silberbauer.j
* Subaequently tlie Magistrate committed Thacker for
trial on a cliarge of perjur>', and, as the Acting Attornc}--
General declined to prosecute, Fourie applied to the
0*urt imder Act 15 of 1864, section 5, for leave to pro-
ceed with the prosecution. On this application the Chief
Justice made the following orders
^ I have consulted Mr. Justice Buchanan, before whom
the ]iei:Jury is allied to have been committed, and after
reading the evidence taken at the prellminar}- examina-
tion r liave come to the conclusion tliat the inter(»t« of
jnstice would not be served by granting the leave asked
for.— loth April, 1897.-^.D.8.
IK THX MAim OF THS MIN01I8 DB LAKOB
AHD OTHBB8.
Mr. lunea, Q.(J., appeared in the matter of the
confirmation by the Court of the sale by MarlA
Johanna de Lange (formerly married to Johan-
nes Hendrik Classen) to Joseph Benjamin
Watson of the share in the landed property
transferred to her as the executrix in the estftta
of the late Johannes Hendrik Classen.
The case was ordered to stand over until
March 12 in order to admitof notice being given
to Mrs. Lauge and to Classen, counsel drawing
attention to the fact that in terms of a previoiua
order of Court notice had been given, but for
a different date.
IN THS MATTBB OF THB CO-OPSBATtVK
BAJUKa OOMFANY.
Mr. Graham applied for an order directing ih«
winding up of ^e company under the Com-
panies Act of 1892, and for the appointment of
J. 8. le 8ueur as official liquidator.
The order was granted.
IN THB MATTBB OF CABL BBMBDICTUB
ZIBBVOOBL.
Mr. Molteno applied for the removal of Blsie
Maria Ziervogel from her position an one of the
executors in the estate.
The Court granted the order, and authorised
the remaining trustee to act alone.
SUPREME COURT-
I Before the Right Hon. 8ir J. H. DE Yillikbs,
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
VAN DEN HEBYER V. DU TOIT. J Peb^^rd
This was an application by the defendant for
the discharge of the notice of trial and for the
appointment of a commission to examine Pietnia
Daniel du Toit, one of his witnessee, at
Hanover.
Mr. Searle, Q.C., appeared for the applicant.
Mr. Innes, Q.C., for the respondent.
The Chief Justice said : The Court will make
no alteration in the date of the trial, which will
remain fixed for Friday next and plaintiff's wit-
67
neflBcs will be hemrd. If defendaot's witnMses
•re not here tbe Court will postpone the case
until Friday week, so the witneBses may be sab-
pfenaed for that date. As for the evidence of
oldMr. Du Toit, the Court will allow his evi-
denoe. to betaken on oommiseion, and appoint
the Resident Magistrate of Hanover as oommis-
aioner. Costs will abide the result of the action.
[Applicant's Attorney, G OS. TroUip; Respon-
dent's Attorneys, Messrs. Van Zyl ic Buissinnd.]
CB¥TWAQBN Y. OIBD.
Application by defendant for the postpone-
ment of trial, owing to the illness of a neces-
aary witness.
Mr. Searle, Q.C., appeared for the applicant.
Mr. Innes, Q.C., appeared for the respondents
The Chief Justice said : Had this case been
let down earlier in the term the Court would
certainly have refused the present application.
But the practice has sprung up lately of putting
off ever) thing during the first few weeks of
term; and just at the end of term squeezing all
the eases into the last few days. The Court in
this case wiU mark its disapproval of that
eomse. It was quite practicable for the plaintiff
to have eet down this case earlier in the term ;
\m% he sets down the case on the day before
the last day of term, when he must have
known that there would be a rush of cases. This
ease, therefore, must be postponed until next
term. Mr. Yixseboxse appears to be a material
witness. No doubt there are other architects,
but the defendant relies on Mr. Yixseboxse, and
he eertainly is, under the circumstances of this
caie,in a better position than any other to
judge of the manner in which the work was
done. He is too ill to attend, and probably
will be too ill to attend next week. It is,
however, only justice that the defendant
most make some offer. She has offered
to pay £200 without prejudice, and
the Court will now make an order that the cass
be postponed until next term on condition that
before Friday next, on which day the case is set
down, the defendant pay to plaintiff the sum of
£200 without prejudice to his defence to the
aetion. Costs to be costs in the cause.
[Applicant's Attorney, J. C. de Korte; Re-
Bpondent's Attorneys, Messrs. Walker &,
Jtoobsohn.]
Of THB SBTATK OF THB LATB WILLIAM AND
CABOLim DOBOTHSA CHIBVILL USD OIHKBS
v. CABLTON AND OTHBBB.
for the opinion of the Supreme Court upon
eertain legal questions referred to it by the
Chancery Division of the High Court of
Justice in Sngland.
Mr. Innes, Q.C., appeared for the petitioners.
Mr. Searle, Q.C., appeared for the defendants.
The Court decided to hear counsel in the case
on Thursday, 26th February.
TBBGIDGA AND CO. V. SIVB- /ifeb 2Srd.
WBIOHT.N.O, I March 1st.
Carriers — Railway Departmeut — Prae-
tor's edict — ^Negligence — Cattle-
Damage.
The Railway Department are liable
for the non-delivery of cattle en-
tnuted to them for conveyance by
railway.
The responsibility of the depart-
ment, as carriers by land, is the
same as that of carriers by water.
Where one of several head of cattle
belonging to the same owner is in-
jured through being trampled upon
by the rest while being conveyed by
railway J the department is not liable
for the loss in the absence of proof
that it v€u an improper mode of con-
veyance to place several oxen loose in
one truchy or that the injury was
otherwise facilitated through neg-
ligence on the part of the depart-
ment.
This was an action for £10 damages for non-
delivery of certain oxen, instituted by Messrs.
Tregidga & Co., carrying on business as butchers
at Mowbray and elsewhere in the Cape Division,
against the Colonial Government.
The declaration alleged that the Railway De-
partment of the Colonial Government, carrying
on business and acting as common carriers by
railway, did by its servants or agents receive from
certain consignors, acting as agents or representa-
tives of the plaintiffs, certain three consign-
ments of cattle, which the department as such
common carriers undertook to convey and duly
to deliver in good order to the plaintiffs at
Mowbray, to wit : (a) On or about the 19th June,
1896, certain sixty-four cattle ; (Jf) on or about
the 6th July, 1896, certain sixty cattle ; (c) on
or about the 2nd October. 1896, certain thirty
cattle, for which services as such carriers the
plaintiffs became indebited to and paid to the
department the several sums due by way of car-
riage (all which would more fully appear by
reference to the waybills of the several consign-
i^ents).
68
That not regarding and neglecting its duty in
the premises the said department by its Fervanta
and agents failed to deliver to the plaintiffs one
ox out of each of the said three consignments of
the value in all of £36, and further delivered to
the plain tiffs another ox out of the said third
consignment not in good order, but in a dam-
aged condition and depreciated in value to the
extent of £5, which said consignment was more-
over unduly and unreasonably delayed in
transit
The plaintiffs claimed delivery of the three
oxen or their value, £36, and £6 damages,
alleged to have been sustained by depreciation
in value of the fourth ox, or in the alternative,
£36 damages for non-delivery, and £6 for de-
preciation in value, with costs.
The Government in their plea admitted the
receipt of the three consignments of cattle, but
said that the first only consisted of sixty-three,
and not sixty -four oxen as alleged in the declar-
ation.
The Government denied the allegations of
negligence, and specially pleaded that when the
trains conveying the cattle in consignments " B'*
and " C " arrived at Middelburg-road Station it
was found that two oxen, one forming part of
each consignment, were so seriously injured
by having been trampled upon by the other oxen
in the trucks that it was found necessary to
remove them from the trucks, as they were
unable to continue the journey, and the depart-
ment, acting in the best interests of the plain-
tiffs, sold the said two oxen for and on account
of the plaintiffs. That the said two oxen
realised the sum of £7 lOs., which amount was
tendered to the plaintiffs before proceedings
were instituted in this action, to wit, on or about
the 16th October. 1896, but the plaintiffs refused
to accept the said sum. That due care and
diligence were exercis d by the department in
carrying the said consignments, and they were
delivered in good order and condition to the
plaintiffs. The Government again tendered the
sum of £7 lOs., and subject to the tender
prayed that the plaintiffs' claim might be dis-
missed with costs.
The replication was general, save that it ad-
mitted the tender.
On these pleadings issue was joined.
Mr. Innea, Q.G. (with him Mr. Stoney), for
the plaintiffs.
Mr. Shell (Acting Attorney-General;, with
him Mr. Bisset, for the Government.
Benjamin Manning, stationmaatfr at Mow-
bray, said he had waybills of oatUe consigned
to the plaintiffs. On June 17, 1896, the waybill
specified that sixty-four cattle left Queen's
Town for the plaintiffs. Of that consignment
sixty-three reached Mowbray. There was an
account pent to Messrs. Trftgidg^ for the car-
riage of sixty-four bullocks, but there was a
footnote to the account in the Mowbray
Station clerk's handwriting that only sixty -
three had b«en received. He had ordered the
clerk to make that footnote. The carriage
charge was made per truck, not per bullock.
Gross-examined by Mr. Shell : The trucks on
their arrival were in good condition and suitable
for the purpose of carrying the cattle. Mr.
Loubser. an employed of the plaintiffs', gave him
a receipt for sixty-four head of cattle. It was
uncertain how many came at the time. The
porter counted eighteen cattle in the first three
trucks, and he counted forty -five in the other
trucks. He could not swear that there were
sixty-three received, but he trusted his porter.
Mr. Innes: Their case is that they only
received sixty -three at Queen's Town.
Mr. Shell : We say we delivered the number
we received.
Alfred James Fleischer, buyer for the plain-
tiffs at Queen's Town, said that in June last he
consigned sixty-four head of oxen from Queen's
Town. He counted them himself twice just
before they were trucked. He would not swear
that he counted the cattle in the trucks.
Cross-examined : The cattle were put in the
trucks during the day. It was towards five
o'clock. The tracking was finished about duak.
The trucks were all right He had never known
the Railway Department lose an ox in that way
before. The loading was done by his (witneea's)
men. The stationmaster at Queen's Town made
out the waybill from his consignment note. The
contract was for the hiring of the trucks. He
took no receipt for the cattle from the station-
master.
By the Court : There was nothing analofi^ouB
to a bill of lading received from the Railway
Department Only since the beginning of the
present year had he obliged the Railway Depart-
ment to give him a receipt for any oatUe he
trucked. The cattle had travelled forty-two
miles before being trucked. They had not
travelled all that distance in one day.
Re-examined : None of the cattle had been
overdriven before trucking.
By the Ceurt : The value of the first consign-
ment of oxen was from £7 to £9 per head, of the
second and third £9 to £13 per head.
Nicholaas B. Loubser, employed by plaintifb,
remembered cattle being sent from Queen's
Town in June. There were eighteen cattle in
the first batch of three trucks.
Cross-examined : He was not there when the
second batch arrived. He signed for sixty-four
^
ciUle I week afterwitrda. He did not know
fW Dumber he waB signios for. He knew ibai
oiijiiity-three bad oon^e.
MitthjE tticbiel LioulMaer, employed by plain-
tils aid he receWed i^lke secoiid bat«hof the
int eoDBignment from Queen's Town. There
vereforty-fiTe cattle.
TlMmias l&oflBop, one of tlie plaintiffs, a
putocr In the firm of TrefrldKa & Co., said it
m tbe rale of the firm not to put more than
sx cattle in a track. He saw the first batch of the
int conaignmeiit from Queen 's Town, and there
*cn eigbteen cattle On the day after the
Re«d batch came. There were forty-fire of
theoi. Tbe valae of tlie lost ox delivered in
Gape Town would he nearly £10. In July they
reedTed another oonBlgnment of cattle from
Qiieea*BTowiu one heing shorty valued at about
£11 In October a consignment of thirty cattle
vaa aeat from Kei-road. The consignment ar-
rived one ox abort, and In addition one of the
lot which was delivered was in a very bad con-
diUoa, exhausted and trampled so that it had
dctetiorated to ^e extent of £6. In the last
tv^ve months sixteen cattle had been delivered
■hart, and nine delivered injured or lost. He
was bringing this as a teet case. He intended
to bring an action for the value of the others if
be wen tbe present caae. He was, however,
really more anxious ak>out the future than the
paeW He wanted tbe case settled to see if the
Goveniment was really liable.
Crossr-examined : They had always contended
that the Kailway Department should forward
aaj injured animal. The Bailway Department
had maintained that in the interest of sanitsr]'
law, if nothing else, oxen that had been killed
or damaged in the trucks should be taken out at
and sold. Since the present action had
instituted the Bailway Department had in
le cases delivered oxen that had died on the
ycMDiiey. A dead ox was worth £1 for the hide
and. J(h. or los. for the tallow. The Bailway
f^P^rtment bad sold some oxen at a less figure
tiian that, so low as 9s., 10s. «d, and 14s. The
Railway Department had paid compensation
for oxen trampled on in the tracks on very
many occasions, e^^ in a case where the shutters
«f tfae tracks had been dosed and the animals
lencteed faint by suffocation. He had the
railway tariff book, and knew that there was a
daose in it to the effect that the department
would not be liable for damages.
jr. fierselman said he had assisted to truck
the cattle of the fi«^ consignment at Queen's
Town. He was sure there were sixty-four of
them. Tbej were tracked just at sundown. He
eare the fuU number of sixty-four were
trucked, and that they were all in good condi-
tion, and not overdriven when placed in the
tnicks.
Joe, a Kafir, said that he had driven the cattle
of the first consignment from Tarkstad to
Queen's Town. They took two and a half days
on the journey. There were sixty-four oxen.
He counted them in Kafir language. He could
not count in Dutch. They were all trucked pro-
perly.
Gross-examined : It was not dark when they
finished trucking.
Herbert 8. Ball, stationmaster. Queen's Town
remembered cattle being loaded there by Mr.
Fleischer in June last. He did not count the
cattle. It was not the practice to do so unless a
receipt had been given for the cattle. A waybill
had been made out from Fleischer's consign-
ment note, and signed by his clerk. The trucks
in which the cattle were sent were in good order,it
would be im|x>S8ible for the cattle to get out. It
was quite dark when the cattle in question were
trucked.
Cross-examined: TLe train had bet n delayed
owing to the late loading of the cattle in ques-
tion. In making out the waybill they took the
word of the sender, except where a receipt for
the number of cattle was asked for. When a
receipt was asked for, the cattle were counted.
By the Court: Every case of cattle falling
dewn in the trucks wm not due to violent shock
received by shunting.
Arthur C. Harding, guard of the train in
which the first consignment of cattle from
Queen's Town was sent, said that as far as
Stormberg, to which station he took the train,
none of the cattle got out. There was no violent
shunting.
Cross-examined: Some of the trucks were
pretty old, but in good order. He had not
frequently seen cattle injured in the trains.
Be-cxamined : A truck could not have been
opened and an ox taken out whilst he was In
charge of a train. He had known instances of
cattle injuring each other in the truckjB.
Andrew James Gardner, guard, said that he
relieved the last witness and took the train in
question to Middelburg-road. The trucks were
not interfered with whilst he was in charge.
There was no violent shunting.
Cross-examined : He had never known cattle
injured in a train of which he had charge. He
had been a guard for about a year.
Thomas Clench, miard, said that he took the
train from De Aar to Beaufort West and lost no
cattle whilst he was in charge.
The Chief Justice : What's the value of the
chain of evidence with one link wanting?
Where is the guard from Mlddelburg to De Aar 1
70
Mr. Shell : The guards are oonBtantly chang-
ing. We hare made every endeavour to get
these guards, but have been unable to do so.
Samuel J. K. Brown, stationmaster, Middel-
burg-road, said he remembered oxen consigned
to the plalntiiEs being found lying trampled in
the trucks at his station on dates in July and
October. They would not have reached their
destination alive If he had sent them on. He
therefore had them removed and sold. One of
the oxen fetched £4, and the others £3 lOs.
By the Court : He had a general authority to
sell cattle found in such a condition, and
an entry was made as to the action that had
been taken.
Continuing, witness said he had sold dose ns of
cattle so injured. Combrincks had never com-
plained. He attributed the lying down and
being injured of cattle to the fact that they were
often put in tired after a long journey to the
station. Bight was the maximum allowance of
cattle to a truck, but five were as many as ought
to be placed in a truck. It was an impossibility
to get eight oxen in a truck. Cows they might
possibly get eight in a truck. He had seen
cattle dead in a truck within three hours of their
being trucked.
Charles Duffett, stationmaster, Grootfontein,
said that on October 6 a train arrived having a
truck with oxen for the plaintifEs. Two of the
oxen were lying down. He had the truck re-
moved from the train and the oxen off-loaded.
The two were completely exhausted, and could
not eat. He watered them, and sent them on
next day. The truck was numbered 4,478.
Benjamin Manning (recalled) said that on
October 7 a truck. No. 4,478, with oxen for
Tregidga & Co. arrived, one of the oxen being
down and trampled on. It was quite the practice
to sell injured oxen of the plaint ffs at stations
up the line.
Cross-examined: About four days was the
usual time for cattle to take to come from Kei-
road.
Mr. Innes for the plaintiff : The Government
is alleged in the declaration to be common
carriers, this is not denied m the plea. If this is
admitted the defendant's case falls to the
ground, common can'iers being insurere and
liable la every case except for loss by act of God
or the Queen's enemies. The point has never
been decided whether the Government when
carrying goods is a carrier, bound by English
law.
The Chief Justice : What does our law say on
the point 7
Mr. Innes ; The whole of the doctrine of the
carrier's liatility in Roman-Dutch law is based
OB the Edict of the Praetor {Digest 4, 9.) A
carrier whether by land or water, in Roman law
is in the same position, and so also in Roman-
Dutch law. Now according to Roman law —
those who took goods to carry for hire were
liable even without negligence, except in the
case of damnum fatale. Now there is nothing
like damnum fatale in this casie. But in
Roman- Dutch law the rule is laid down by
Voet (4, 9, 2), who extends a liUle the
doctrine laid down by Jdodestinvs in the
digest. Voet puts robbery from a stable or inn on
the footing of goods taken by force from a ship
by pirates. See also Van Leenwvn (R.D.
Law (4, 2, 10). and Censure Foremis, (Pt. I. 6, 90,
3). True otheiiwriters, e,g, Sehorer^ differ, but see
Peeking (De Nautica,page 818. folio E.D. Opera
ommia), while Xdy«^ (Med itationes VoL I. p.
710, specimen 66) says that in actions ^ De
receptU " no culpa or dolus need be proved — but
the plaintiff need only show that he brought the
thing to the carrier with the knowledge of the
person receiving and that it is immaterial hy
whom the damage is done. The nearest case In our
law is Naylor v. Mwnnik (3 Searle, 187) ; see alao
Jones V. Union 8 8, Co, (1 Juta, 126), and
gtretton v. Uni4>n 8,8, Co, (I E.D., 815), and
Shippard's judgment, p. 836) ; 8tory (on Bail.
ments, section i^^) Surge (Vol. 8, page 697). The
question is whether we must plead and prove
cfilpa.
The Chief Justice : The more important quea-
tion is the onus prohandi. Does it lie on yon to
prove negligence or on the Government to prove
diligence ?
Mr. Innes : That is assuming that negligenoa
must be averred. We do not admit this ; and see
Act 19 of 1861, section 20. The words used there
are applicable properly only to an insurer.
Even if the department are not insurers by com-
mon law they surely are by their regulationa.
See Regulations 130 and ISl of the Railway
Department Regulations whieh clearly con-
template the payment of insurance rates for
anything over £12, showing that the Govern-
ment clearly consider themselves insurers (for
amounts under that figure) under the common
law and statute ; the schedule merely limits the
common law liability to £12. Otherwise in
terms of the Statute and Regulati<His a man
shipping goods on railways under the depart-
ment is always insured for an amount £12 leas
than the actual value. We rely on the Roman -
Dutch authorities, but the Statute and Regula-
tions are useful as showing what view the
Railway Department takes of its position.
The Government is now relying on Regulation
128— but it should have been pleaded as setting
up the contract as contamed in the Regulations.
All considerations of equity and public polic
71
tre in faTOur of the Tiewg laid down by the
Bmnan-Dnteh authorities. Oar broad princi-
ple ii that eulpa is not necessarj to be proved,
but that the carrier is an insurer and is liable
for anj damage save damnium fatale. The
consignor is not bound to send a man with the
cattle to feed and water them, it maj not be
ptaeticable. The Government has not pleaded
contributorf negligence, and we have not come
to meet such a case. If the Court finds that
culpa IB an essential, the onus is on Government
to prove due diligence, as we have proved that
we delivered the!cattle to the department in good
order. But the chain in the Government evi-
deaee on this point has broken down, for the
Government failed to produce all the guards on
the various sections.
Mr. Sheil, Acting Attorney -General, for the
GoTemment : Assuming that carriers by land
sre in the same position as carriers by water
under the Pretorian Edict, it is dear by our law
that the same extent of liability does not attach
to them as the law of England imposes upon
common carriers. See StrtUon v. Ths Union
S^. Co. (I B.D.O., 316),per Barry, J.P., at p. 324.
mdper Shippard, J., at p. 335. In J(»iet v, Tlie
Umon S.S. Co. (1 Juta, 1&), the Chief Justice
regarded the defendants in that case as being
in the position of depositaries or, as the Snxlish
law calls them, bailees. See Story on Bailments
(anb-aection, 428, 467). This being so the
liability or non-liability of the Government in
the present case depends upon whether the
Bsilway Department has discharged the onus of
Bbowing that there was no negligence on its
part.
Mo evidence whatever of negligence has been
given. The trucks were proved to be in good
order and condition. No accident occurred to
the trains which carried the oxen, and under
BQch circumstances there is only one inference
that can be drawn and that is that the injured
smmalssostained damage in consequence of their
own ''proper vice," or by the vice of the other
uimaU in the trucks, in which cape the depart-
ment, even by English law, would not be held
lisble, as the loss was occasioned by mere
socident and inevitable casualty. See Blower
V. The Q. W. RaUway Co, (7 C.P.. 655) ; KendaU
V. L.^S. W. RaUftay Co. (7 Bxch. Cases, 373) ;
Carr v. L. 4' Y. Railway Co. (7 Exch.. 711, 21
UL Bxch., 262) ; PardUgtan v. 8. W. Railway
Co. (26 L.J., Exch.. 1(«); Gabay v. Lloyd
(3 B. &C., 793); Ltwrenee v. Ab rdien (5 B. k
K 107.) Although these cases are not binding
00 this Court still the principles underlying
Uiem are sound, and fully support the doctrine
Itiddownby 8tory.
It is purely a jury question whether the first
consignment consisted of 63 or 64 oxen. If the
Court is satisfied that 64 oxen were delivere.l at
Queen's Town, the Government would of course
have to submit to judgment for the value of
that ox.
The Chief Justice: The Court has no doubt
as to the liability in one case— the first; but as
to the other, we will take time to consider.
C.A. V.
Pogtea ( March 1st).
The Chief Justice said : This is an action
against the Railway Department to recover
damages for non-delivery of three oxen, which
had been consigned to the plaintiffs, and for in-
jury done to a fourth ox, which had also been
so consigned. The cattle had been sent by rail-
way from Queen's Town by the plaintiff's agent,
Fleischer. The first ox alleged not to have
been delivered to the plaintiff was sent in a
large troop, filling eight cattle-trucks. The
cattle were driven into the trucks by Fleischer
himself, who states that he counted them while
they were in a kraal adjoining the station, and
found them to be sixty-fonr in number, lie is
supported in this statement by two other wit-
nesses, and by the important fact that the re-
ceipt signed by the stationmaster's clerk at
Qneen's Town, and sent onto Mowbray, specifies
sixty-four as being the number of oxen con-
signed. Strangely enough, no such receipt was
demanded by or given to Fleischer at the time
of the delivery. The defendant now alleges that
only sixty-three were delivered to the Railway
Department, but the only evidence given in
support of this allegation is that
of the guards who accompanied the train
for a portion of the journey between Queen's
Town and Mowbray. Each of them states that
while he was in charge no oxen could have
escaped or been stolen from the train, but such
evidence is of no value if links in the chain of
proof are wanting. No evidence is forthcoming
as to the journey from Beaufort West to Mow*
bray. In the face, therefore, of the receipt
given by the stationmaster's clerk at Queen's
Town it is impotsible to hold that only sixty-
three exen were placed in the trucks. The de-
fendant was bound, in the absence of any legal
excuse, to deliver the full number of oxen con-
signed, and must pay the full value of the
missing ox, which according to the plaintiff's evi-
dence, amounts to 8 guineas. As to the two other
oxen which were not delivered to the plaintiffs,
the Railway Department account for their non-
delivery as follows : On their arrival at Middel-
burg-road Station in separate trucks and on
different days each of the two was found lying
down and badly injured from being trampled
i
7%
upon by the other oxen ia the truck.
There were six in each truck. In order
to prevent any further injury the station-
master remoTed the injured oxen, and acting
on instructions from the deimrtmeut, he had
them sold to the best advantage. They realised
the sum of £7 IOb., which the defendant has
tendered to the plaintiffs. If they had not been
remered from the trucks they would in all pro-
bability have been trampled to death. A ques-
tion has arisen in the course of the argument
whether the department had any right to sell
the oxen, but assuming that this right did not
strictly exist, the question would still remain
whether the department is liable for the injury
done to the oxen. lithe department Lb so liable
the damages payable to the plainti^ for the
loss of the two oxen would be about twenty
guineas, but if the department U not so liable
there is no proof of damages beyond the sum of
£7 lOs., which has been duly tendered to the
plaintifliB. The important question, therefore,
to be decided is whether, under the circum-
stances diacloesd in the evidence, the depart-
ment, as carriers for hire, are liable to make
good the loss occasioned by the injury done to
the two oxen. In England the well-established
role is that a common carrier is responsible for
all losses except those occasioned by the act of
God or of the King^s enemies, but even there
such responsibility does not extend to losses
oooaaioned by some internal defect or some
inherent tendency to damage in the goods
carried. Thus, " if horses or other animals are
transported by water, and io consequence of a
storm they break down the partitions between
them, and by kicking each other some of them
are killed, the carrier will," according to Story
(on Bailment8,Bection676)," beexcused.anditwill
be deemed a loss by perils of the sea." In this
colony the liability of common carriers is not
quite so wide as in England. It has never yet
been expressly decided whether the Praetor's
edict, relating to innkeepers, shipmasteni, and
stable-keepers, applies in this colony to carriers
by land as well an by water. In the Netherlands
the dearth of authority on this point may be
accounted for by the fact that moi>t of the
carrying trade has always been done by water,
but it is strange that in this colony, where there
is no internal transport by water, the question
has never been distinctly raised. The edict of
the Roman Pnetor extended in terms to carriers
by water only, but the reasons stated for the
rules which it lays down are equally applicable
to carriers by land. The edict declared
that if Hhipmasters, innkeepers, and stable-
keepers (lid not restore what they had received to
keep safe the Prsstor would give judgment
against them (^Digett, 4, 9, 1). The reasons given
by Ulpinn for this edict are that it is for the
most part necessary to place confidence in such
persons, and to commit the custody of things to
them, and that unless this rule were thus
established an opportunity would be afforded to
them to combine with thieves against those who
trusted them, whereas they now have an induce-
ment to abstain from such frauds. The con-
struction placed on this edict was that the
bailees named were liable in every case of loss
or damage occasioned by theft, injury, or
otherwise, although happening without any
default on their part, unless it happened by
superior force or by what was called " fatal
damage," as, for instance, by shipwreck or by
the act of pirates. Among instances of superior
force being used, Voet mentions the cases of an
inn or a stable being broken into by burglars,
and the property of the guest or the horse
of the bailor being stolen, but he adds that if the
theft was facilitated by the negligence or default
of the innkeeper or stable-keeper, be would be
liable, and that the burthen of disproving
negligence lies upon him ( Voet 4, 9, 2). Voet
does not mention the case of a carrier by land,
but in the l/trecktsehe ContHttaiien (Vol. I.,
C, 21) such carriers appear to be placed on the
same legal footing ae carriers by water. Among
French writers on the civil law, Domat
(Bk. I. t. 16, sub-sections 3 and 4) holds a
similar view, which has been adopted in the
Code Civile of France (Art. 1782, &c In
Naylor v. Afunnik (3 Searle, 187) which
was a case of a carrier by land remarks were
made by the then Chief Justice of this
Court, and were concuired in by his three col-
leagues, which tend to show that In their opinion
the principles of the edict were equally ap-
plicable to carriers by land. " It appears to
me," said Hodsres, C.J., " that a carrier who
undertakes to carry goods is bound to tmke
faithful care of those goods, and is answerable
for their loss even in the ca«e of theft. It ia for
the interest of the public that this rule should
be enforced, as otherwise a door would be opened
for the perpetration of gross frauds when goods
are handed over by their owners for the purpose
of traosit." Assuming then that carriers by
land are subject to the same responsibility as
carriers by water, it does not follow that the de-
fendant is liable in the present case. The ex-
ceptions to the rule, as laid down by the Pnetor,
show that a carrier is not an inpurer of the
safety of the goods intrusted to his care. But
Mr. Innes contends that even if bv common
law the department are not insurers of the safety
of cattle carried by rail, their own regulations
cast on them the liability of insurers. Under
78
tiie heading *' Insuranoe Bates " the ISlst regu-
lalion fixes the rate for cattle at ten ehillings
for every £10 or fraction of £10 of declared
▼alue above £12 for 161 miles and upwards, and
requires that " the insurance premium must be
prepaid unless a special agreement to the con-
trary has been made with the traffic managers."
This insurance premium is a special charge
over and above the ordinary freight. It can
only be charged on the declared value above
£18. The fact that no insurance rate can be
claimed where no value has been declared, or
where the declared value is under £12 for each
ox, does not prove that oxen are insured to the
extent of £12 by the payment of the ordinary
freight. The ordinary rates for the conveyance
of cattle and other live-stock are referred to in
the 132nd regulation as " freight," and not as
** insnrance rates,*' and it is, therefore, impossi-
ble to hold that the department, by acceptance
of freight, insured the plaintiff's cattle against
whatever casualty might befall them during
their journey. They are liable for any injury
done to the cattle by their negligence or the
negligence of their servants, and for loss by
tiieft or otherwise, but so long as they take all
reasonable care, they are not liable for damage
done to each other by the plaintiffs' own cattle. If,
for instance, the proper mode of conveying
cattle by train were to place each bullock in a
separate box and, without the consent of the
owner, the oxen were allowed to be together
unfastened in a truck, the department would be
guilty of negligence. But it was assumed in
the present case that the usual and proper
mode of carrying oxen is to enclose about five
or six in a truck and leave them standing loose.
It was proved that the plaintifEs' own agent
placed the cattle in the trucks, that the trucks
were in good order and of the kind usually
employed for cattle, and that the injury to the
two oxen was done by the plaintiffs' own cattle.
The department, having proved these facts,
are in my opinion absolved from their common
law liability, unless the plaintiffs prove actual
negligence on their part. Such negligence
would not, it is true, be the immediate cause of
the damage, but the department would be liable
far any harm which might reaeouably have been
expected to result from their negligence. Thus, if
it had been proved that by reason of carelessness
in shunting the trains the trucks had been
shaken with unnecessary severity and some of
the oxen knocked down, the department would
be liable for the injuiy done by the trampling
which might reasonably have been expected as
the result of such carelessness. But in the
absence of any proof of this nature, the Court
cannot assume that negligence on the part of
L
the department caused the plaintiffs' cattle to
injure each other. The cattle had been driven
some distance before they were placed in the
trucks, and it is quite as likely that some of
them lay down from fatigue as that they were
knocked down by carelessness in handling the
train. Bveiy facility is afforded by the regula-
tions for the conveyance of cattle drovers in
trains carrying cattle, and the department can-
not reasonably be expected to provide attendants
to lift up any cattle which should happen to lie
down or fall. In cases of this nature judges
must be careful not to import their own
knowledge of what they have known to occur.
As frequent tiavellers by railway, they con-
stantly witness the greatest carelessness on the
part of subordinates of the department, but they
are not entitled to assume that such
carelessness was exhibited in particular cases
coming before them. In the present case we
only know that two of the plaintiffs' oxen were
injured by the other oxen while being conveyed
by train, and in the absence of proof that snch
injury was facilitated by the defendant's uegli-
gence,l am of opinion that the plaintiffs are not
entitled to recover more than the amount ten-
dered. As to the fourth ox, which arrived at
Mowbray in an injured condition, that injury
was also caused by trampling, and in the
absence of proof of the defendant's negligence,
the claim cannot be allowed. The judgment of
the Court must therefore be for the plaintiffs
for the sum of £15 ISs., comprising the sums of
£8 88. and £7 10b. already mentioned, and as
the defendant has only tendered the sum of
£7 10b., the judgment must be with costs.
Mr. justice Buchanan : In concurring in the
decision just stated, I only wish to say that in
my opinion contracts with carriers are
governed by the same principles of law, whether
the carriers are carriers by land or by water.
In the ease of carrier not returning property
entrusted to him in like good order as it was
received, the onus is upon him to show that he
is not at fault. In this case there was not much
evidence led on this part of the case, but look-
ing at the practice of butchers which has been
proved, the nature of the injury caused, the
habits of the cattle carried, and the fact that
the trucks provided by Government were in
good order and that the consignor himself
undertook the loading of the trucks, I think the
Bailway Department has sufficiently discharged
the onus upon it of proving due diligence.
There is no evidence of contributory negligenoe,
and there is sufficient before us to account for
the injury to cattle without there being any
default on the part of the carrier. There is
one other matter I would refer to, apart
74
altogether from the le^al questioDs Involved.
The evidence discloBes a mode of treatment of
cattle carried on the railway, which if not
absolutely cruel is the reverse of considerate. I
know there is a difficulty in watering cattle
when on the train, in fact they will not take
refreshment in the trucks, and sometimes not
for hours after they are released, but at the
same time I certainly do not think this justifies
the poor brutes being kept four days and
nights without food or water, as wa<« shown the
cattle were in this case.
Mr. Justice Maasdorp .* I concur in the judg-
ment, but I am inclined to take a different view
in some respects of the law applicable to the
case. It is necessary in the first place to ascer-
tain generally what principles and rules of law
govern the rights and liabilities of the parties
to this suit It is contended for the plaintiffs
that the Roman law with respect to the liabili-
ties of masters of ships, innkeepers, and stable-
keepers, contained in the edict of the Praetor
given in the Digsit (Book 4, Title 9) is applicable
to this case in all its original severity. On the
other hand it is said the duties and responsi-
bilities of the defendants are similar to those of
depositaries for hire, who are bound to use
ordinary diligence, and are liable only for damage
and loss resulting from ordinary negligence.
And it is further argued for the defendants that
even supposing their responsibility must be
measured by the rules of the civil law, the de-
fendants would come within the exception in-
troduced by the decisions of the Courts of
England, where principles similar to those of
the civil law are stringently enforced. This ex-
ception is admitted in cases where animals
which are being carried are injured through an
accident caused by what is called their own
" proper vice." Under the edict of the Praetor,
unless shipmasters, innkeepers, and stable-
keepers restore what theyhave received into their
custody for safekeeping they arejliable in damages.
Under this rule they are held liable for loss and
damage, even though it did not result from any
default or negligence on their part* unless it
happened by what was called fatal damage, or
damnum fataie. Circumstances and events which
would bring losses under the term "fatal
damages" are set forth in detail in the
authorities, and, unless accidents resulting from
some defect or " proper vice '* in the animal it-
self can in some way be included under them,
it seems to me the circumstances of this case
would not bring the defendants within the
exceptions. We have therefore to consider
whether the defendants as carriers by land fall
under the Civil law rules which regulate the
resDonsibilities of innkeepers, masters of ships i
and stable-keepers. They are not expressly
brought within the limits of these rules by the
terms of the Civil law, which has been adopted
in the law of Holland, whatever modifications
the latter law may since have undergone with
respect to the persons falling under it. The
most implicit authoritv upon this
point is Schorer^ who, in hifl note to
Orotius, No. 468, savs
tt
It has been
been advised that a coachman, like the master of
a ship and stable-keeper, is liable for damage
sustained, even without any fault on his part,
but Latiterhach dissents from this view on the
ground that here the reason why the Prsetor
so decreed in the case of those pereonf^, namely,
because that c1a«s of men are a deceitful race
and often very untrustworthy, and frequently
conspire with thieves, fails. Hence, also, when
a wagoner has undertaken to carry a box of
specie to a certain place, and having lost the
money, declared that it bad been stolen and the
theft also dearly enough proved, it was advised
that the wagoner was not liable unless the owner
of the money proved negligence on his part, and
rightly so if he had authority from the owner to
substitute another, otherwise c?/i^a had preceded
accident, in which case even vh majoi* has to be
made good, as I pointed out in note 332." If the
reasoning in the above paspage is sound the
principles of the Civil law will for the reason
there*given not be applicable to the defendants in
this case. Voet, in 1 ook 4, title 9, section 10,
says the double penalty against masters of
ships, innkeepers, and stable-keepers had become
obsolete, the rivour of the Roman law and of
the edict of the Pisetor remaining in other
respects in force in nautas ac sivuleg dlws, I
do not think Voet intended by this
casual phrase similes alios to extend
the law beyond the classes of personi)
treated of elsewhere in this title.
On the whole, I am of opinion that the responsi-
bilities of the defendants are not to be tested by
the principles which have been founded on the
rule of the Civil law, but are similar to those of
depositaries for hire. In that case they were
bound to use ordinary diligence, and are liable
for damage caused by their negligence. As to
the burden of proof, I should say the onus lies
upon the defendants to prove that tlft damage
complained of was in no way caused by their
negligence, but was the result of accident for
which they were not responsible. The loss of
one ox which, according to the evidence for the
plaintiffs, was delivered to the defen-
dants, has not been accounted for, and
the defendants are liable for the consequent
damages. As to the injured animals, I think
there is sufficient evidence to lead to the con-
75
tiwmthftt iht injuries Biast»uied by them were
^KKdby Aooiden^ \>eyonci i^lie oontrol of the
^sifiMltDts, mnd mot tYiroxign their negligence.
That tlie accident ^vas not ca^iBed by the bad
lod QHkilfQl mctnAseroen^ of the train can be
infemd from the laot ^liat none of the other
nimtU in the smne track, or in the other traoka
mtained any injnriea, an<i there is good reason
loroomiDg to tlie oonolnaion that the treatment
to which they ^rere sul>3ecte<i was such that in
aQ probability some of them would snocamb on
thejonmey. For t4[mt treatment the plaintiffs
ihemielTQa were to blame, and I am inclined to
think that the oonaeqneat losses are quite
within the contemplation of owners of cattle
icat long distancea by train, and that they
iiiBore themaeWea by making their calculations
■eeordingly. 1 only ^riah to add that in my
opiidon eren if the atringeot rules of the
Sn^Iiah law, which are aimilar, if not more
screre than the Civil law were applicable to
thia caae, it wonld fall within the exception
mtrodooed by the decisions of the £nglish
Gourta. where it ia held that carriers are not
liable for damage resulting from what is called
the ** proper vice ** of the injured animal. As I
hare aaid before, 1 think the accidents in this
^ue aroae from the exhausted condition of the
tarnishing aninialB, and for that the plaintiifs
themeelTes were responsible. I am therefore
of opinion that the plaintiff are entitled to
jodgment for £15 186., together with costs of
aoiU
rFlaintifE*s Attorney, Gub. Trollip; Defen-
dant's Attorneys, MesarSb Beid & Nephew.]
SUPREME COURT.
[Before the Bight Hon. Sir J. H. db Villiebs,
P.C^ K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdobf.J
!1897.
„ 4th.
„ 16th.
Ship — Charter party — Exception —
Negligence of crew— Barratry —
Perils of the sea — Warranty of
seaworthiDess.
2fy a charier party it was agreed that
the d^fendanCs ship ** beiiig tight.
stauttchy and strong^ and every way
Jilted for the voyage^^ should go to
Middlssboro-on-Tees and there load
a cargo of alag manure and there-
with proceed to Cape Town and
deliver such cargo, always afloat in
such dock or usital berth as consig-
nees or agents may appoint, ^*the
act of Ood, perils of the sea, fire,
barratry of the muster and crew,
. . • stranding and other acci-
dents of navigation excepted ; even
when occasioned by the negligence,
default or error in judgment of the
pilot, master, mariners, or other
servants of the shipowner,^' The
ship on her arrival a/ Cape Town
was taken into dock. Certain pipes
in the ship were so fitted that by
opening two valves sea-water could be
made to flow into a ballast tank.
One or more of the crew having
intentionally opened the valves with
the object of sinking the ship.
Held that the damage thus done to
the cargo fell within the exception
of " barratry by the crew"
Held further, that the fact of the
vessel being in port at the time of
the damage did not exclude the opera-
tion of the exceptions.
This was an action brought by plaintiffs
against John Gully as master of the ship
Oberon, representing the ship and her owners, in
which the sum of £3,600 was claimed for
damages to cargo sustained while on the
Oberon.
The plaintifEs* declaration alleged :
1. The plaintifiEs carry on business in partner-
ship at Gape Town under the style or firm of
Woodhead, Plant & Co.
2. The defendant is sued in his capacity as
master of the ship Oberon, now in Table Bay
and as representing the said ship and her
owners.
S. On or about the 18th day of August, 1896,
the said ship was duly chartered by or on
behalf of the plaintiffs in London to load and
convey from Middlesbro'-on-Tees to Cape Town
a full and complete cargo of slag or manure in
bags at a freight of 16s. per ton of twenty
hundredweight gross weight.
76
4. The said cargo was duly laden and reoeived
on board the said ship in good order and con-
dition, and amounted to 19,281 bags of Blag or
manure, and the said ship proceeded on her
voyage and reached Table Bay, and was on or
about the 24th day of January moored in dock
at the South Arm for the discharge of her said
cargo.
6. It became and was the duty of the defen-
dant and the owners of the said ship in accor-
dance with the aforesaid charter party and
relative bill of lading to make delivery at Cape
Town to the plaintiffs of the said cargo in like
good order and condition, but the defendant and
the said owners have failed and neglected to
deliver the said cargo as to part therefore in
like good order and condition, but have
delivered portion thereof, to wit 6,681 bags or
thereabouts, in a damaged condition, such dam-
age having been occasioned by sea water which
reached the said portion of the said cargo after
the said ship was moored as aforesaid, but be-
fore any delivery of the said cargo or any part
thereof.
6. The said sea water reached the said cargo
through negligence on the part of the defendant
or the persons employed by him on board tht
said ship, but independently of such negligence
the plaintiffs contend that the defendant in his
aforesaid capacity is liable for the damage and
loss sustained by the plaintiffs who have
received delivery of the damaged cargo without
prejudice to their claim to recover such damage.
7. The damage so sustained amounts to tbe
sum of £3.600, if a sum of £50 be included
which the defendant contends that the plaintiffs
should pay for the cost of pumping out the said
sea water, but the plaintiffs do not admit that
the said cost of pumping should be charged
against them ; and deducting that sum they are
entitled to claim payment of the sum of £3,460
from the defendant and against the said ship
which has been duly attached by order of this
Honourable Court ad fundandam jurisdictumeni,
8. The defendant in his said capacity neglects
and refuses to pay the said sum of £3,460, or any
part thereof.
9. The freight still due and available under
the aforesaid charter party is £387 48.
Wherefore the plaintiffs pray for judgment
for the said sum of £3,500 sterling, and falling
payment forthwith of the said amount, they
pray for an order declaring the said ship and
the amount of freight, to wit £387 48., execut-
able in satisfaction of the judgment aforesaid,
together with costs of suit,
Or, that they may have such further or other
relief in the premises as to this Honourable Court
may seem meet, together with costs of suit.
For a plea to the declaration the defendant
said :
1. He admits the allegations in the first four
paragraphs contained.
2. Bills of lading were duly signed by the
defendant and accepted by the plaintiffs in
their favoni for the whole of the said cargo.
And the said bills contained the following oon-
ditions : " The act of Qod, perils of the sea, fire,
barratry of the master and crew, enemies.
pirates and thieves, arrests and restraints of
princes, rulers, and people, collisions, stranding
and other accidents ot navigation excepted,
even when occasioned by negligeoce. default or
error in judgment of the pilot, master, mariners,
or other servants of the shipowners. Ship not
answerable for losses through explosion, burst-
ing of boilers, breakage of shafts, or any latent
defect in the machinery or hull, not resulting
from want of due diligence by the owners of the
ship, or any of them, or by the ship's husband or
manager.
3. As to the 6th paragraph he says that he
duly delivered all the said cargo to the plain-
tiffs in terms of the charter party and bills of
lading, but he admits that 6,000 bags or there-
abouts had been damaged by sea water, which
reached the cargo while the ship was moored
in dock through a valve connected with the
ballast tanks. Delivery of the cargo had com-
menced before the said damage was discovered.
He denies the other allegations in the 6th
paragraph.
4. With regard to the 6th paragraph he says
that the water did not reach the cargo through
any default on the part of himself or the per-
sons employed on board the ship ; but even if it
did he says that the owners of the ship are pro-
tected from liability by the terms of the bill of
lading hereinbefore set forth. He does not
admit the plaintiffs' contention in the 5th
paragraph contained.
6. He denies the allegations in the 7th
paragraph, and he says that owing to the quan-
tity of water which flowed into the said ship
through the valve aforesaid the ship and cargo
were in danger of foundering, and that it be*
came necessary for the safety of the entire ship
and cargo to incur exceptional expenditure in
pumping out the said water. The defendant
engaged the steam tug Alert to pump out the
said water, and incurred other liability for the
benefit of the said ship and cargo. He con-
tends that the expenditure thus incurred hj
him was on a general average expenditure, to
which the plaintiffs, as owners of the cargo, are
bound in law to contribute.
77
VHudmitBtbe &llesiktioii8 in tlie 8ih and
^Vttignphs, «&ve tltittt; lie Bays that the
HMWAidnefoT ireiglil^ as aforeeaid is the sum
Wbeidorehe prays iliat tlie plaintiffs' claim
«^7^<iumim.d n^ith. coete.
For i claim ia reconvention the defendant
Mid:
1. He askfl leave to refer tbis Honourable
Court to the masters eet f ortli in Ms plea to the
dedantion.
1 The amooni due by the plaintiffi as a
gcBtfal aYermge contribution in terms of section
S ol the plea la the sam of £^0 or thereabouts.
3. All thiaga have happened, all oondltions
been fulfilled, and all time - elapsed to entitle
kim to demand trom the plaintifEa payment of
tlie fnig;ht aforesaid, and also of the sum of
£00 for general average oontribation. Yet the
plaintiffa aegleet and refuse to pay any part of
theaud sttma.
The defendant claimed in reconvention: (a)
Paynteat of the sums of £657 4b. and £<S0 as
aforeaald ; (jb^ alternative relief ; (e) costs of
The plaintiffs, in their replication, admitted as
to paragraph 2 that they accepted bills of lading
for the whole of the said cargo, and that the said
hills bad certain conditions affixed and in-
itialled by the master in the terms set forth in
that paragraph, but they referred the Court to the
terms of the bill of lading, and denied that the
conditions are binding on them, and alleged that
the bills of lading did not protect the defendants
from liability for the loss or damage the subject
of the action.
to paragraph 4, they denied knowledge of
the cireomstances under which the damage was
eansed, and denied defendant's contention.
They admitted the water was pumped out
from the vessel, and that it was necessary for the
safety of the ship and cargo to do this, but denied
liability for any part of the expense incurred.
la the plea to the claim in reconvention the
defendants in reconvention denied liability for
expenditure of pumping, admitted that
the balance of freight is £687 4s.,
bat claimed to deduct certain pay-
^cu ts and liabilities incurred en behalf of
the plaintiH in reconvention to the amount of
M30O, and tendered to pay the balance (£318 4s.)
upon their claim asset out in the declaration
bein^ satisfied.
Upon these pleadings issue was ioined.
Mr. Searie, Q.C. (with him Mr. Benj')min), for
the piaintiils.
Mr. J, Bose-Innes, Q.C. (with him Mr.
Graham), for the defendants,
For the plaintiffs was called
William Spivey Woodhead. a memlier of the
plaintiffs* firm, who said that the firm had an
office in London. Witness was in London in
August^ 1896, and personally conducted the
business of the charter of the ship Oberon. The
cargo of manure consisted of Albert's phoAphate
powder. This was easily damaged by water. It
contained 40 per cent, of lime, and hardened
into lumps on contact with water. Its value
lay in its fineness, and the powder was supposed
to go through a sieve of 10,000 meshes to the
inch. The firm had dealt in the powder for
several years. When it was caked, it would
take years for the plants to get any benefit.
By the Court : The stuff was not altogether
unsalable in its damaged state ; in fact, it had
been sold by auction.
Examination continued ; £690 was paid on
account of freight in London. The full freight
was £1,874. There was still a sum of £226
78. 8d. in the hands of the plaintiff firm to the
credit of the captain. The ship was docked on
January 21. On that date witness saw the cap-
tain, and asked him what condition the cargo
was in. He replied that it was in sound condi-
tion. Next morning witness was telephoned
for, and when he got down to the Docks he
found great excitement on board and the vessel
apparently sinking. The water appeared to be
beating into the deck scuppers. Witness after-
wards saw the captain, who stated he had
found the valves open, which had allowed the
water to flow into the ballast-tank, which
contained cargo. The captain told witness
the ballast-tank was connected with the
sea by two valves. The valve- wheels on deck
must have been improperly turned in order to
admit the water into the ballast-tank. The
ballast-tank and manholes being uncovered, the
water flowed into the fore and aft holds. The
captain stated that his attention was called to
the ship sinking by a hawker on shore and the
captain found that this was so. The captain
then had the vessel pumped, and the tug Alert
was employed in this operation by the advice of
witness and surveyors. Witness called in Messrs.
Herbert and Watson, and went down to have
the cargo surveyed. This was on the Saturday
morning, when the ship was two feet higher and
the water out. It was January 27 before the
trucks were down to get delivery. The captain
wanted witness to sign an average bond, which
he refused to do, as the captain did not wish
anything put in as to the valve being found
open. Fifty pounds was paid into the bank on
joint account to cover expenses of pumping.
This was done instead of signing the average
bond. Witness thought the best way was to
78
have the damaged cargo sold. There was
no machinery here which would grind
the manure sufficiently fine. The net
proceeds of the sale of the damaged
cargo was £466 17s. Sd. The stuff was sold by
plaintiffs' firm at a price of 96b. a ton This
showed a loss of £1,969. Nearly all the good
cargo was sold.
Cross-examined : Witness was now familiar
with the bill of landing. Upon it was pasted
what was called the negligence clause. Wit-
ness held that this clause ^ as not binding upon
plaintiffs. He did not suggest that there was
any fraud in the pasting on of the olaute. The
tank was for carrying cargo, but seeing that the
valFes were unlocked and unprotected, he
thought the cargo was improperly carried in the
ballast tank. Plaintiffs' firm charged commis-
sion on the sale in accordance with the regula-
tions of the Ghiimber of Commerce. Witness
endeavuured to get the damaged stuff re-
crushed, but was not successful. A full week's
notice of the sale was given. Witness proposed
that the captain should take the damaged cargo
back to Middlesborough as a means of reducing
his loss.
By the Court : The cargo was insured free of
particular average, which meant insured against
total loss only.
Cross-examination continued : The well
went down right to the bottom of the ship. It
was easy for a sailor to get down. Mr. Advocate
Searle had been down it. The wheels
of the valves could not be turned from
the deck. A person would have to go down to
a platform to turn the wheels, which could not
be turned except by someone acquainted with
such machinery. The captain said he found
the canvas cover of the well on the deck, and
the rope missing.
Hans August Paul Burmeister said he had
been a sea captain, but now had a berth ashore.
He had seen the Oberon and the well where the
two wheels were. Vessels of this kind were
rare. He remembered one particular ship — the
Bermuda -with similar valve openings and
ballast-tanks coming here some years ago. On
the Bermuda the valves were protected, a
special chamber nine feet square being built
and locked up, the key being in the captain's
possession. When he saw the valves of the
Ot>eron the thought struck him there should
have been a proper lock to the lid, so as to pre-
vent any tampering.
Cross-examined: Witness had had no ex-
perience of these ships himself.
John A. 8. Watson, a member of the firm of
Messrs. Searight k Co., said he had carried on
business in Cape Town since 1878. In company
with Mr. Herbert witness surveyed the damaged
cargo and made two reports. In the seoood
report they recommended that the damaged
cargo should be sold. The damaged cargo was
not in a merchantable condition. He had had
experience as to chemical manures. He could
not recommend the stuff to be sent back to
Bngland to be re-treated because of the expense.
He had never before seen a vessel with ballast
tanks of the same build as the Oberon. He
had reen ships with smaller and separate tanks,
but never one like this, with one big tank amid-
ships.
Cross-examined : Witness knew the ship was
elaased Al at Lloyds, and he certainly would
not go against the surveyor's recommendation.
Joseph William Herbert, partner in the firm
of Messrs. Attwell & Co., shipping agents,
corroborated.
H. B. Piokstone said he had purchased some
of the damaged stuff, which oould be crushed
with a spade. The stuff oould be used for
orchards, but was not much use for nursery
purposes.
This dosed the plaintiffs' case.
John Gully, master of the Oberon, said the
owners were Messrs. James Fairlie, of Glasgow.
The Oberon was one of three ships belonging to
the same owners. They all had ballast-tanks.
The Oberon was built three years ago last
September, and was classed 100 Al at Llovds,
When she left Middlesborough the ship was
sound and seaworthy. Witness had been at sea
twenty-five years. Ko one could see one of the
wheels mentioned unless he could see through a
6-inch plank. The apprentice was on duty on
the night of January 21. He was intelligent
and reliable. On the morning of the
22nd Captain Sinclair, the marine surveyor, came
on board, and certified that the hatches were
well battened down. About a quarter past nine
a boy, a dealer in feathers, came on board and
said something as to the position of the ship in
the water. Witness then found the ship was
considerably below her marks, and the carpenter
at once made soundings. The carpenter was
now in prison for attempted desertion. Tbe
carpenter said the tank was full of water. They
found the valves open, and they were at once
dosed. Then the ship was pumped, first by
hand, then by steam, and then the Alert came
along and rendered assistance. Witness thought
the valves must have been opened about mid-
night on the night of the 21st. If the tank were
empty, it would take about twelve hours to fill
It would be difficult to get on board except by
the gangway. The crew were not now all on
board. The carpenter was in gaol, one of the
crew was in hospital, and four had deserted^the
79
fimi ten dmys after the accident. WitDess had
htd no trouble with hia crew ; the mate had a
'*digfat altercation ** with a man in the roadB.
The mate was charged with aeeaultand was fined
1(%. Measn. Haawell Sc Stephen had certified that
the Talres were in good condition, and could not
he opened except by hand and of set purpose.
Plaintiifa asked for security f or£2,000, and wi tness
wired to the owners to that effect. Witness
made all endeavoura to trace how the valves
were opened without sncoess. No stranger
would have understood the nature of the valves.
Craaa-examined : Witness had not sailed in a
sailing ship with this kind of ballast tank
hefore. So far as he could ascertain, the cargo
arrived in dock in a sound condition,
Peroival Ethelbert Hahn, apprentice on board
the Oberon, was on duty between six p.m. on
January 21 and six a.m. on January 22. His
doty was to walk up and down and see that
thinga were right During that time Charles
Johanaen and F. Johansen, an apprentice, the
carpenter, and a seaman left the ship. The men
went on shore by the gangway. Charles
Johanaen and the seaman came on board again
about midnight ; the others came on board be-
tween twelve and one o*clook« Witness spoke
to them. One of the men (Scott)
went forward; he could have gone
to the valves without witness seeing him.
When Scott came back Mattio, the carpenter,
went ont of the deck-house for about five
minutea. When the carpenter came back, Scott
went oot again for a few minutes. After that,
io far as he knew, the men turned in. So far as
be knew no one else came on board that night
Charles Johansen had siuce deserted.
Croaa-examined : Witness was often on duty
during the night, and he walked up and down.
Sometimea witness sat down. The ship came
xato dock about noon ; and witness could not
tell all the people who came on board from the
time she was moored. Witness was not on duty
the prerious night.
Hugh K. Haswell, resident engineer for the
OasUe Company, said he inspected the ship on
January 22, and advised that the services of the
Alert should be obtained. This was for the
benefit of both ship and cargo. There was
nothing improper in putting cargo in such a
tank as that in the Oberon. It was hardly
possible for anyone not acquainted with the
working of the valves to open them.
Croas-examined : Witness had mostly had to
do with steamers, but had had experience in
nrveying ships. He had not seen many sailing
ihips built like the Ol>eron He did not remem-
ber the Bermuda. For greater security the well
ihonld have been locked.
William Stephen, Superintendent of the
Alfred Docks, corroborated the evidence of the
last witness. He had only seen one such ship
as the Oberon before. He agreed that a stranger
could not have turned on the valves.
William Toms, first mate of the Oberon, was
on board most of the time she was in the Bay.
There wan only one visitor, a friend of the cap-
tain and witness. When the ship came into
dock she was drawing the same water as in the
Bay. The man-hole was not in a conspicuous
place The covering was on when the vessel
came into dock. Next morning the rope had
disappeared from the man-hole. Two valves
would have to be opened before the water could
come into the sh^p.
Charles Duncan, second mate of the Oberon,
said that when the captain went ashore he was
with the boat's crew. He never took any\isi*
tors to the ship.
Arthur T. Edwards, manufacturer of manures
at Diep River, said he had a complete plant for
crushing. He examined the damaged stuff, and
he could have crushed it through a sieve of
1,200 holes to the square inch. He could have
crushed it to d,OCO to the square inch, but would
have had to get special sieves. He thought the
stuff could have been cruehed for about 32s.
per ton.
Cross-examined : The finest mesh procurable
in town was 8,600 to the Fquare inch.
Mr. Woodhead (recalled) said : £4 15s. perton
would be the value of the manure at the rail-
way-station. The charge per ton for delivery
from the Docks to the Railway-station would
be 3s. per ton.
This closed the evidence.
Mr. Searle, Q.O., for the plaintiffs: It is
admitted that the cargo was brought sound to
the Docks on 2l8t January, and that a large
portion of it was delivered in a damage«l
condition. The onus is on the defendant to
show why it was not delivered in good condition.
lheFreedo/n(Ij.U.,3 P.O., 691). It is difiicult
to see from the plea what the defence is,
though the defendant sets out the negligence
clause. But such a clause is interpreted strictly
as against a shipowner ; it is for him to show
that if he contracts himself out of liability ; the
present case falls within the exceptions. He
therefore must show that this damage is due
either to a peril of sea, barratry, or accident of
navigation. Scrvtton (Charter Parties and Bills
ot Lading, p. 185, and the cabes there cited) deals
with negligence of master or mariners. See
7aylor v. Liverpool 8,8, Co, (L.R. 9, Q.B. 549) ;
The Chartered Ba k v. Netherlands Co,
(10 Q.B.D., 621); Xorman v. Binnington
(25 Q.B.D., 477) ; Burton v. EnglUh (12 Q.B.D.,
80
218) : Abbott (Mercantile Shipping, 829. 838) ;
Nota/ra v. Henderton (41 L.J., Q.B., 168). As to
perils of sea, see Scrntton (page 176) ; Pandorf
V. Hamilton (16 Q.B.D., 629, 633)— and the
definition of *' perils of sea " there given ; The
Accomac (15 Prob. Div.. 210); The Sonthgate
(Prob. Div., 1893, page 329). See also SeruUon
(pp. 187, 188), as to when voyage can be con-
sidered as terminated for the purpose of the
bill of lading ; The Caiiada Shipphig Co, v.
British Shlpofciiert, Association (23 Q.B„ 344)
and The Pharaoh (Prob. Div., 1893, p. 30).
From the above cases it will be seen that the
loss in the present case was clearly not an
accident of navigation ; it is not a peril of the sea
when the ship is moored safely in dock and
accident happens there through regligenee of
some person. Vie Chasea (4 L.R., A. & E. 446).
Neither was it barratry, for barratry must be
founded on fraudulent intention— and arise
ex malefiei^ and the evidence does not support
this. Fletcher v. Ingli^ (2 B. & A., 315). Our
case of Philip Bros. v. Koop (4 Juta, 53) was
overruled by Pandorf v. Hamilton (16 Q.B.D.,
629), though in the latter case there was no
negligence. See also The Glen Ochiel (Prob.
Div., 1896, page 10); Woodhouse v. Christian
^' Co, (4 B.D., 183). It is not for us to prove
how the damage was done, it is for the defen-
dant to show how it was done and that it falls
within the exceptions provided for in the bill of
lading. Counsel also cited Th^ Carron Pa/rk
(15 P.D., 207); Strange v. Steel (14 App.
C, 601).
Postea (March 3rd).
Mr. Innes, Q.C., for the defendants: To
arrive at a correct estimate of the liability of
the defendant we must look at the documents
constituting the contract of affreightment.
The chief one is the contract in the charter
party, and particularly to be noted is the effect
of the clause contained in the slip admittedly
attached to the charter party before execution,
in which all liability for damages from acci-
dents, perils of the sea, and barratry, is pro-
vided against even when the damage is
occasioned by the negligence of the master.
The bill of lading is in all essential respects the
same as the charter party in this case. What
is the ordinary effect of such an exception 7
Krohn V. Nurse (Buchanan 73, page 86), and
Philip V. Koop (4 Juta, 53); show that in
ordinary cases where there is no negligence
clause the shipowner is liable for negligence
even if the damage is within the exceptions,
but when the negligence clause is contained
in the charter party the shipowner is guarded
against at least negligence of servants: Steele
V. State Line Co, (3 App. Oases, 72). True he
cannot guard against hts own neglect in pro-
viding an unseaworthy ship. Unless therefore
the ship's tank in (he present case was so con-
structed as to render the ship unseaworthy the
owner is guarded. Defendant urges that the
water was let in by one of (he crew— and we
are guarded against liability for this because
of the exception as to barratry. If not by the
crew, then by whom was the water let in ? Then
it is an accident due to an unknown cause, it is
a peril of the sea. The mere fact of ita being
due even to an outsider assisting the forces of
nature does not take it out of the category of
perils of the sea. There was no water when
the ship came into dock, next morning it was
fulL This could have been caused only (a) by
an outsider, {b) by the crew acting negligently,
{c) by the crew doing it wilfully. The Court
sitting as a jury would be warranted in finding
the facts inconsistent with the act having been
done by an outsider. What motive eoold an
outsider have ? Besides, the man who did it
must have known all about tanks and valvee.
The whole matter is surely highly suspicious as
against the crew. It is pretty clear that one of
the crew did let the water in, and if he did it
wrongfully it was barratry at least. Evi^n
if it had been done negligently our oase
would have b^en (stronger — and the case of
The So%tthgate would apply (Prob. Div. l&'S.
page 329). If the act was barratry, see Sevan
(on Negligence, Vol. II., page 1,299);
McLachlan (Law of Merchant Shipping, p.
263). Barratry means some fraudulent, wrongful
act by the master and crew against the interest
of the ship or cargo. If the ship is lying in
the dock— is her voyage finished? Ber legal
charter party voyage is not finished so lonj^ as the
cargo remains to be dealt with thouj^h the
actual sailing voyage is finished. Laurie y,
Do^tglas (16 M. and W., 746) seoms in conflict
with Tht Accomao (15 Prob. Div., p. 208). But
see The Carron Park (15 Prob. Div., p. 203) ;
The Softthffote (Prob. Div. 1893, p. 829). There
may be a peril of the sea even where there is
no navigation.
The Court intimated that it was not necessary
to argue the point of damages.
Mr. Searle, in reply, referred to The Olenfruin
(10 Prob. Div., 103) and Tattersall v. Nati^mal
Steamship Co, (12 Q.B.D., 297); Xeatittas (12
App. Cas., H.L., 512); Armoftld (on Maritime
Insurance, Vol. II., page 76') ; Muter^s Execvtors
v. J&i^s (3 Bearle, 366) ; Scruiton (page 188).
C.A, V,
Postea (March 4th) the Court delivered judg-
ment.
De Viriers, C.J.: The plaintiffs seek to
recover from the master of the ship Oberon, as
81
>^»««^^^aR the owTi€»rs, tlie sum of £3,600 for
'^^ Aoofe to a. c&rso o^ 8la>? nmnure ijon-
^^tti«pla.iiiUfl[R, ^vrlio were charterers of
^^V TbecVM^-ter x>arty, which was executed
wWdoii ^Q^criUed tl^e ship as classed 100
ilUoyiJft wiA a& •*l>eioi5 tija:ht, sUunch and
*M|, md every way fitted for the voyage."
ifeisUp of paper, whicli Ib admitted to have
Wo ittached U> the cbarter party before its
exKntioii, the f oWowinjir clause occurs : '* The
iciof God, perWR of the aea, fire, barratry of the
master and crew, enemies, pirate«», assailing
thievea, aneai and restraint of princes, rulers
and people, coUialons, stmndin^, and other
aeeidenU of navigation excepted ; even when
occaaioned by the negligence, default or error in
jodgineni of the pilot, master, mariners, or
otber aeTvanta of the shipowner/* The ques-
tlmia to be determined are whether the ship
was seaworthy when she took in the cargo, and,
if ahe waa, whether the damage falls within
say of the exceptions contained in the charter
party. A portion of tlie cargo was stowed in a
part of the ship wnich can also l)e used as a
water-balltft tank. In order to fill this tank
with water, ft is necessary to open two valves,
ooeof which allows the water to rii<e in a pipe
eoainianicating with the sea, and the other
allows the water to flow into the tank. As the
water flows into the tank, the ship sinks deeper
iato the aea and thus causes the water to
eootinae flowing into the tank until it is filled.
Ib order to reach the wheels fur turning the
▼aWea. it is necessary for a perse >n lo go down
a manhole five or six steps to a platform, which
if* abont eight feet l»e]ow the d«ck and about
fifteen or sixt en feet aljove the boUorn of the
fihjp. There was no defect in the valres, nor
eoold they have been open d without the use of
sotne force. The manhole was kept closed by
means of a wooden cover over which there was
a canvas cover. The ship arrived in lable Bay
OD the 23rd of December Ust, and entered the
dock on the 2l6t of January. On the morning
of the 22Dd the discharge of cargo was com-
menoed, and between nine and ten a.m. the
mmster observed that the ship was settling
down in the water, and on investigating into
the cause, he found that the two valves had
been opened and that the water was entering
into the ballast tank. He afterwards used
every effort to discover the person who had
c»pened the valves but was not successful. Judg-
ing by the quantity of water which had flowed
into the tank, he came to the conclusion that
the valvi a had been opened about midnight
between the 2l8t and 22od of January. The
emrga io the tank was damaged by the seawater
»]|d ft is for this damage that the present
action is brought. The plaintiffs contend
that the facility with which the vaWes
could be opened is evidence of fauKy
construction and that the Court is bound
to find that the ship was not in a seaworthy
condition. In support of this contention they
greatly rely upon the fact that after the
damage had been done the master secured the
valves by means of handcuffs to prevent a
similar occurrence in future. The ship is
admittedly classed 100 A I Lloyds, which is said
by one of the witnesses to be the highest dais
register. In the face of this fact it requires
more evidence than has been adduced on
behalf of the plaintiffs to satisfy the Court
that the ship was not " every way fitted for the
voyage." A wooden ship may be tight, staunch
and strong and yet it would be as easy to bore
a hole in her bottom as it was to open the
valves of the Obex on. Precautions were
afterwards taken to prevent the valves being
opened again, but even these precautions would
not be sufficient to prevent one of the orew
from forcing open the handcuffs and opening
the valves when a convenient opportunity
offered. We are dearly of opinion that the
ship was seaworthy when the cargo was loaded
and at the time of sailing from the port of
loading. The next question is whether the
defendant is protected by any of the exceptions
which I have enumerated. We are satisfied,
after a careful consideration of the evidence.
that the valves were intentionally opened with
the object of letting in the water, and that this
was done by one or more of the crew. It was a
case therefore of barratry by the crew, just as
much as if one of the crew of a wooden ship
were to bore a hole in her bottom with the view
of scuttling her. If this view be correct then
clearly one of the exceptions applies. But
assummg that the evidence be held insufficient
to prove (barratry, we are of opinion that the
damage was occasioned by a p^ril of the sea.
The exceptions in the present case embrace
perils of the sea. &o., " even when occasioned by
the negligence, default or error in judgment of
the master or mariners." so that the negligence,
if there was any, of the master or mate in not
keeping a proper supervision over the valves
cannot be relie 1 upon by the plaintiffs.
The main objection taken by them to the
applicability of the exceptions is that the
vessel was in dock at the time of the accident.
I take the true lule, however, to be as stated by
Mr. Bcrutton on Charter Parties Article, 9i, that
"exceptions in the contract of affreightment,
unless otherwise clearly worded, limit
the shipowner's liability during the
whole time he is in possession of
82
the goods as carrier, and therefore apply
during the loading and diecharging of
the goods." The cases on the point are not
perhaps reconcilable with each other, but in
none of those where the shipowner has been
held liable, was there a clause like the one in
the present case. The terms "other accidents
of navigation " in the charter party cannot
have been intended to limit the preceding
exceptions to the time when the sh'p was
actually on her voyage. Thus if the ship had
been destroyed by fire while in port, the
exceptions would have been applicable, and it
bai» not been contended that if the damage now
in question was caused by barratry, as found by
the Court, the shipowner would have been
liable. We entertain no doubt whatever that if
the damage had been done on the voyage and
not in the port the exceptions would have
applied. The lose would certainly have been
recoverable under a marine policy, as due to a
peril of the sea. To use the language of Lord
Herschell in Hamilton v. Fi'oger (4 A.C., 530),
*'it arose directly from the action of the sea.
It was not due to wear and tear, nor to the
operation of any cause ordinarily incidental to
the voyage, and therefore to be anticipated."
In that case rice had been shipped under a
charter party and b41 of lading which excepted
" dangers and accidents of the seas." During
the voyage rats gnawed a hole in a pipe on
board the ship, whereby seawater escaped and
damaged the rice, without neglect or default on
the part of the shipowners or their servants. It
was held by the House of Lords, reversing the
decision of the Court of Appeal, that the damage
was within the exception, and that the ship-
owners were not liable. In the case of the
Xantho (4 A.C , 503), the question was
discussed by the House of Lords whether the
term " perils of the seas " should receive
a different construction according as they
occur in contracts of affreightment or in
policies of insurance, Lud was -inswered in the
negative. '* Was it," said Lord Bramwell, "by
a peril of the sea that the defendants' ship
foundered? The facts are that the seawater
flowed into her through a hole and flowed in
euch quantities that she sank. It seems to me
that the bare statement shows she went to the
bottom through a peril of the sea. It is
admitted that if the question had arisen on an
insurance against loss by perils of the sea this
would have been within the policy a loss by
perils of the sta. Are the words to have
different meanings in the two instruments? '
and he answers this question with a decided
negative. Lord Macnaghten was equally
emphatic. " The Court of Appeal," he said,
" start with the assumption that the same words
have different meanings — when used in |>olicie8
of as«uraoce and when used in bills of ladiof?.
For that assumption there \v> not, I venture to
think, any foundation. Different oonsideim-
tions, no doubt, apply to the two oontracts, a
contract of indemnity and a contract of car-
riage, and the same event may have a different,
result in the one case from what it would have
in the other, but in mercantile contacts ao
olosely connected the same words must have
the sam3 meaning." H* Iding as we do that a
policy of insurance against perils of the seaa
would have covered the damage done to the
plaintiff's cargo wo are of opinion that the
defendant is not liable for the loss. The
amount claimed in reoonvention is admitted to
be due and judgment must be given accordingly.
Their lordships concurred.
[Plaintiff's Attorneys, Messrs. Van Zyl A
Buissinn^; Defendants Attorney, C. C.
Silberbauer.]
SUf^REME COUR r
[Before the Right Hon. Bir J. H. db Villikrs.
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Juatice
Maasdobp.]
PROVISIONAL ROLL.
BANK OF AFBICA V, BENNETT
AND 0THBB8.
( 1897.
(Feb. 25th.
Mr. Tredgold applied for provisional sentence
on a promissory noce for £16 \ Two of the
parties had confessed judgment.
Granted.
BMUT8 AND KOCH V. VAN JAABAVKLD.
Mr. Jones ap|ilie<l for provisional senleoce on
finotarial l>ond for £4 0. dated January .HI,
1894. and interest at the rate of 6 per cent.
Granted.
JOBLING AND CO. V. O'CONNOR.
Mr. Tredgold applied for the discharge of the
provisional order for sequeatratiou in ihU
matter.
G rap ted.
8^
UGBOKK, HAKKlft AND STBPHEN, AND 0THEB8
V. SMTTU.
Mr. iTvdgold applied thai the retarn day be
ateaiM to March 12.
Grmatod.
REHABILITATIONS.
Be JOUH AUTBBD OBBBN.
Od the applicaiioD of Mr. Cloee, the rehabili-
Utioii of John Alfred Green was granted.
JU KDWAKD JOUJS PBIMGLK.
Ob Ihe applicatioo of Vr. Close, the rehabili-
tatioD of Bdward John Pringle was granted.
GBNBRAL MOTIONS.
IK THK MATTER OF THE PETITION OF JOHN
LAWBON GAMEBON.
Articled clerk — Attorney —Period of
Service.
Mr. Macgregor applied for leave to petitioner
to oonnt the period Mr. Cameron has
already Mfred as an articled clerk in Soot-
laad, Tiz., two years four months and one week,
■ad to allow him to indenture himself to an
attorney in this colony to serve the remaining
period of seven months and three weeks, so as
to oomfdete a three years' service, and be there-
after admitted an attorney of this Court.
The application was granted, save that a
period of twelve ciontha' service was ordered,
with prodnction of caitiftoato that applicant has
psned the attorneys' examination before admis-
[Applicant's Attorneys, Messrs. Van Zyl 6c
B«i»nn€.J
IS THE MATTER OF THE PETITION OF SARAH
SOPHIA VAN SITIERT.
Mr. Searle, Q.Om applied for the appointment
of a curate ad litem in proceedings to have her
husband Peter John van Sittert declared of un-
MKUid mind, and for leave to give evidence by
aflldavit.
The Court granted the application. Mr.
Meyer, chemist and J. P., of Queen's Town, in
viiose employ the alleged lunatic had been for
tbirteeo years, was appointed curator ad
tUm,
CHIVBLL V. CAELYON. {KeK^^th,
Marriage — Community —Domicile — Im-
movable property.
Qio'siinnn suhmiHid by the JJhjk
Cotirf It/ Euglftml/or (he nphdon nf
th*' Sftprt'inc Court.
1. Amsuiuintj Unit two sj*fntj<r8 u'tn:
(hull trit I'd in thin Colony at thi' tiim'
of their inurritiye here^ and rcmtiiurd
8o domicHi'd hfre diirini/ their Joint
iiri'H^ windd rertnin imiuorafde pro-
pf'rty in Enylaml inwrhosed Ity fhf
hnalxtnd dnrinfj the salmi stenci- of thr
marriaye ftdl trithifi the rinn inanity
o/ J trope rty mated by the morriaye f
2. Assuniiny that the nponses were go
domiciled at thf time of their mar-
riage^ but 9id)He<iUfntly changed their
domicile to an English d*nnicHv
before the jmrrhase of the immorabit
property^ but during their Joint licesy
would Htu'h change oj domicile hare,
any effect upon their respective rights
in regard to the said property.
Held, that the Jirst qu4'Mtion must be
answered in the affirmatice^ and the
Hfcond in the negative.
This was a case stated for the opinion of the
Supreme Court by the direction of his lordship
Mr. Justice Stirling, Chancery Division, High
Court of Justice, England. The facte of the
case were: On August 3, 1887, William Chlvelli
then a widower, married Caroline Dorothea
Dickson, then a widow, at Kimberley. No ante-
nuptial contract was executed. Mr. W. Chivell,
at the time, had one son (a defendant in the
present action), William Richard Chivell, born
during the previous marriage in England : his
wife had had three children (defendants in the
present action) by her tiret marriage, who were
born in the Cape Colony. On February 10, 1888,
Mr. and Mrs. Chivell made a joint will at the
Cape of Good Hope, appointing the survivor
and children of the prior and existing marriages
to be sole and umversal heirs, with a life usufruct
in favour of the wife. There were three children
(plaintiffs in the present action) issue of the
marriage between the testators. The testators
proceeded to England (which was Mr. Chivell 's
domicile of birth), and during their joint lives
acquired immovai)le properties there in the
name of Mr. W. Chivell, to whom it was con-
veyed. Mr. Chivell survived his wife and re-
i
8d
the question at issue was settled by the procla-
mation of ]2th Ju]y, 1822, added that " the
great body of civil lawyers agree with Voet in
upholding the ubiquity of the matrimonial
domicile by virtue of the tacit contract which
is everywhere of legal obligation." In the sub-
8e<|uent case of Black v. Black's IJj^ccufors (3
Juta, 200), parties who bad been married in
Scotland changed their domicile and came to
reside at the Gape, and the question arose as to
the rights of the wife and of her heirs ab
hites'ato in respect of immovable property
acquired by the husband in this colony. It was
not even contended that the change of domicile
gave the wife any different rights in respect of
.immovable property situated here from thote
which she would have enjoyed in Scotland. Ic
was admitted that the law of Scotland must
prevail, and the only question to be decided wus
what the law of Scotland was. In the present
case it is not stated where the money came
from to pay for the property purchased in Eng-
land, We may assume, however, that the money
was paid by the husband himself. I hat money,
at all events, until paid to the vendor,
formed part of the community between the
spouses. Does the fact that it is invested by
the husband in the purchase in his own name of
land situated in England deprive the wife of her
share in the community ? If such were the
law a husband married here in community of
property, who wishes to deprive his wife of her
share, might change their domicile to a foreign
country, where community does not exist, and
then with impunity obtain the wife's share for
himself by investing the whole of the partner-
ship in immovable property situnted ia such
foreign country. In this colony parents often
prefer to see their daughters married in com-
munity instead of by ante nuptial contract, be-
cause they consider the tacit contract of com-
munity of more advantage to their daughters.
All the advantage might, however, be lost if the
husband had it in his power by a subsequent
change of domicile and purchase of land in the
new domicile to transfer his wife's property to
himself. In answer to the iirst question, the
Court is of opinion that the immovable pro-
perty in England falls within the community of
property created by the marriage. In answer
to the second question the Oourt is of opinion
that the^hauge of domicile of the parties hus
no effect upon their respective rights in regard
i'O the said immovable property.
Their lordships concarred.
[Plaintiff's Attorneys, Messrs. Beid k
Nephew ; Defendant's Attorneys, Messrs. Fair-
bridge, Ardeme & Lawton.]
GOOSBN V. G008BN.
Mr. Jones appeared for the plaintiff; defen-
dant in default.
This was an action for the restitution of con-
jugal rights, and failing that, foi divorce. The
parties were mairied at Seymour in 1881, and
there were two children of the marriage. In
September, 1884, the defendant deserted the
plaintiff, and had not since contributed towards
her support.
Henrietta Ann Goosen, the plaintiff, said sbe
was married by the Rev. Mr. Shaw, at Seymour,
in the year 1881. The clergyman, Mr. Shaw,
had since died. Witness lived with her husband
at Tarkastad for about two years. Shortly after
tbe marriage her husband wa« convicted of
fraudulent insolvency. There were two children
— a boy and a girl. Defendaut was in prison six
months, after which he came back and ttnyed
with witness about a year. After the desertion
witness went back to Tarkastad. Defendant
left witness at Seymour, paying he was going to
Adelaide. Just after the desertion witness
received a letter, but bad never seen the
def 1 ndant since ; nor ha 1 he supporte 1 h<T in
any way.
The Court granted a decree for the restitution
of conjugal rights, defendant to return on or
betoie March 31, failing which a rule nUi would
be granted dissolving the marriage, and giving
the plaintiff the custody of the two minor
children.
[Plaintiff 'h Attorneys, Messrs. Scaitlen &
Syfret.]
J0NK8 V. MATTHEWS.
I 1897.
{ Feb. 25th.
/ „ 2f>th.
Insolvency — Fidei-rinmnitisum — Vest-
ing - Conditional legacy.
In the absence of amj htdicatloHtf o/'
(I contrary intention in the to/V/, pm-
perty bequeathed subject to a lidei-
commissum does not erst in (he
fidei-commissary teyntee until the
expiration of the precimtn fidw-iary
interest. Certain land hacing beat
l)e(iueathed to the defendant's mother
subject . to a fidei-commissum upon
her death in his favour he became
insolvent^ whereupon the plaitUifi'
purchased fJie insolrenfs exj>ectnftry
from the trustee. The df^endanf^s
mother died after the account of tJtf
insolvent estate had been cofifirnted.
87
Held t\»at ih*- ithtitttiff' tntM mt
thrdrffttditfii.
The cft*e tvf Van Bredj. r. l^raster
Thii wu an action brought by Charles
Teuint Jones ai^ainBt George Frederick
XiUb«vft,ind\vi(iaa1l3' and in his capacity as
aeatort«stauieutar3' of the estate of the late
Jiae Matthews, to obt:iin an order for declara-
tioD of riglita and transfer.
Theplaiutiff^B declaration was as follows:
'. The pfAaintiff reHiden at Wynl)erg, in the
Ca|« DivWiun; the defendant resides at Port
KUsabeth ; and he ie sued individually, and also
in kia capacity as executor testamentary of his
mother, the late Jane Matthews.
1 On the 27th April, 1852, one John Parkin,
the fatht r ol the said Jane Matthews, and the
l(Tamlfath«T of the ilef endant, executed his last
will and testament, in terms of whi h, infer
a/M, 'he Vjeqneathed to his daughter Jane, then
laarried to one John Matthews :
C«> Certain lot of ground marked No. 19,
ntoate in Bird-stre* t. Port Blixabeth, purchased
\ff the testator from William Harris, as per
deed of tranafer, dated the 2 st March, 1819.
\() Certain piece of Goveroment s^nnd,
•itumted within the limits of the Garrison ground
at Port Kliaabeth, purchastd by the testator
from Brnest F. C. G ie, as per deed of tranafer,
d«tcd the 6th Deotmiber, 1847.
(O Certain lot of ground with the buildings
th«-ieou, situa ed al Port Elisabeth, marked
letter F, purchased by the testator from the
troi^eea of tlie insolvent estate of Alice Eliza
Wh>brew, a^ per deed of traubfer, dated 16th
I>€eeuiber. IS4'>: upon tnidt that she nhould
■taatl pnsaesttd of Ihc same, and be entitled to
i^eeelve the annual rent, incoiue, and profits
therefrom for her on and during her lifetime ;
and that after her death the whole of the said
property fhouhl revert to and become the pro-
perty, free and euoacum))ered, of the lawful
iaaneof his said daughter, who should then be
Irriog, in cijual *«harep, and should forthwith, be
tranaferred to ihtir joint names, and from
thenoefc rib be and remain for their jsint use
Aod Itent^t, and be at their sole and absolute
dijtpofal.
X The testator, the said John Parkin, further
direcfed by bis said will that the property so
bequeathed should ni>on the marriage or majority
of hia aaid daux^ter Jane Matthews sfter his
death be transferred to her in trust, and subject
lo all the provisions and conditions pf his said
4. The said John Parkin died on the 18th
October, 1856. leaving the said will of full force;
on the Bl8t December, I85S, the pro, erty herein-
before mentioned was duly transferred to the
said Jane Odatthews subject to the provisions of
the will ; and she continued to enjoy the rent,
profiti^, and use o' the said properties during the
term of her life.
5. The said Jane Matthews died on the 19th
September, 1896, leaving two children, namely,
the defendant and a daughter, Elizabeth Ann
i\f eyer (born Matthews), and also a grandchild,
whose father survived the said John Parkin but
died i>efore the said Jane Matthews. The defen-
dant is her executor testamentar}', and has duly
taken out letters of administration as such.
0. The I5tli Mtiy, I8S2, the estate of the defen-
dant was oompulsorily seqrestrated as insolvent
according to law, one William Arthur Ourrey
was elected and confirmed as trustee thereof.
7. The defendant thereafter notified in writ-
ing to his trustee the exislence, a» an as^et in
his estate, of his rights aforesaid under the will
of the said John Parkin, and the said trustee
proceeded to sell all the said rights by public
auction after advertisement in the ''Govern-
ment Gazette " and otherwise.
8. All the in0olveDt*6 said riglits, both present
and future, were purchased by ihe plaintiif
from the said trustee for the sum of £200, which
Fum was paid on the 24th April, 1883, and was
then-after distributed as an asset of the said
estate ; and the plaintitf received full and
formal cesniou iu writing from the trustee of
all the insolvent's interests under the said will.
!). The final liquidation and distiibution
account in the said estate was thereafter duly
confirmed, and the insolvent received hisrehabi-
litatiou on the 24th July, 1887; but there
remains a deficieucy in the said estate of
£4,700 or thereal'outs.
10. The sale of the rights aforenamed was
made with the full knowledge and consent of
the defeutlaot who both bef(»re and after his
(•aid rehabilitation acquiesced iu and acknow-
ledged the said sale.
11. The defendant now un wrongfully contends
th*^the is entitled to a full one-third share of
the property hereinbefore referred to, and that
the sale to the plaintiff as aforesaid was invalid
and of no legal effect.
12. The trustee aforesaid hfS notice of this
action and raises no objection to the claim of
the plaintiff to the said property.
The plaintiff claimed :
(o) An order declaring that he is entitled by
virtue of the premises to one-third share of the
property in the gad paragraph of the declaration
88
mentioned; and that the defendant is not
entitled thereto.
(b) An order compulliug the defendant to do
all things io his power necessary to enable the
plaintiff to obtain transfer of the said share in
the said property.
{e) Alternative relief.
(d) Costs of suit.
The followinfi: was the defendant's plea :
1. The defendant admits the allegations in
paragraphs 1, 3, 8, 4, 5, 6 and 9 of the declara-
tion, but for greater certainty begs to refei' this
Honourable Court to the terin^ ot the la^t w 11
of the late John Parkin.
2. As to paragraphs 7, S, 10 and 12, he con-
tends that tht) allegations therein set forth do
not constitute against him any caufe of action,
and further says a 4 follows :
3. He has no recollection and does not admit
that he notified to his trustee the e^iisteuce of
any rights under the will of John Parkin as an
asset of his, the defendant's insolvent < state,
but he admits that his trustee in May, 188B,
purported to sell and cede and the piaintilf
purported to buy and receive all his. the paid
trustee's, right, title, and intt rt-st to the expec-
tancy of the defendant under the will aforesaid,
and that the plaintiff paid to tlie said trustee,
for distribution in the said estate, tlie sum of
£200 as the price.
He annexes hereto, marked A, a copy of the
document whereby the trustee so pur, orted to
cede his, the said trustee's, right, title and
interest as aforesaid, upon which document the
plaintiff's claim is based.
4. He also admits that he had knowledge of
and did not in any wny object to the act^ of his
trustee as set forth in the premises, and says
that even after the death of his mother on the
19th day of September. 1896, and until recently,
he was under the erroneous imprcFsion that
plaintiff was legally entitled to his, the defen-
dant's, share in the property bequeathed to her
by John Parkin.
6. Save as aforetaid, he denies the allegations
in paragraphs 7, 8, and 10 of the declaration.
6. The trustee aforesaid of the defendant's
insolvent estate never at any time had in law,
under section 48 of Ordinance No. 6 of 1848, or
otherwise, any right, title, or interest in or to the
defendant's expectancy under the will of the
late John Parkin.
7. The defendant's mother was fiduciary
legatee of the property bequeathed to her as
aforesaid, and at no time before the confirmation
of the account and plan of distribution in his,
the defendant's, insolvent estate, nor at any time
before his mother's death, >yas any right veeted
}n the defendant,
8. The defendant's trustee in insolvency did
not in law by the aforesaid transaction sell aoy-
thing to the plaintiff, nor is the defendant bound
in law by the said tiansaction between the
plaintiff and his said trut^tee.
9. He admits that he makes the contention
alleged in paragraph II, but denies that he does
BO wrongfully.
10. As to paragraph 12, he craves leave to refer
this Honourable Court to such proof as the
plaintiff may adduce in relation thereto.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
11. As executor testamentary of his mother's
estate, and if the above plea l)e deemed in^ufii-
cient. but not otherwise, the defendant BKys
specially that, as fiduciary legatee, his mother
largely improved the property bequeathed to
her, and greatly enhanced its value by buildings
thereon and other improvements, and he con-
tends that the plaintiff has in no cape the right
to demand transfer of any share of the property
BO bequeathed until he shall have paid the
amount of compensation to which the estate of
his mother is entitled in respect of such im-
provements and enhanced value.
Wherefore he again prays that the plaintiff's
claim may be dismissed with costs.
The following was Annexure A referred to in
the foregoing plea :
I, the undersigned, in my capacity as sole
trustee in the insolvent estate of George
Frederick Matthews, son of Mrs. Jane
Matthews (born Parkin), do hereby cede, assign,
and make over unto and on behalf of Charles
Tennant Jones, of Port Elizabeth, his order,
heirs, executors, administrators, and assigns, all
my right, title, and interest to and in the
expectancy of the insolvent under the will
dated the 27th day of April, 1862, of his grand-
father, the late John Parkin, for valne
received.
Dated at Cape Town, this 1st day of M^y,
188H.
W. A. CURRKY,
Sole Trustee,
Ins. Est. G. F. Mat'hewB.
The replication was general as to the first
plea. As to the second plea, the plaintiff said
that improvements have been made upon the
property which have to a certain, though not to
a very large extent enhanced its value. He is
and has always been willing to pay compensa-
tion for the value of the said improvements
when transfer is passed to him, the amount to
be settled either by agreement or by arbitration,
or to allow defendant to remove them, but the
4efendant h^s wever demanded payment of any
r
8^
nm vkatwerer in respect of sueb improyements :
nbjaet te thiB he joins i&sue with defendant.
On these pleadings issue was joined.
Mr. Innes, Q.C. (with him Mr. Jones), for the
pjaistit.
Mr. Searle, Q.G. (with him Mr. Benjamin), for
the defendant.
For the plaintiff,
Cbsrles Tennant Jonee. M.Ij.A., said lie was
leqiuinted with the land in dispute, which ad-
joined land belonging to his wife. Witness
pnrehaaed the land in dispute from the trustee
is Uie insolvent's estate, one of his objects
bebg that he should have some
rights when the property came to be
out o£E. Witneas knew that if the
MD died before bis mothe^* he D.ight lose the
Isodat sny time. Witness had hired land from
Mn, Matthews for the term of her natural life,
iqioa whieh he had erected a kitchen and other
binldiiigs. Witneas was willing to pay a fair
vtiue for improYements. Witness paid £21)0 for
tk ihiieof the insolvent, and had had no value
whatever. On July 7, 1896, shortly before the
death of Mrs. Matthews, witness received a
letter from the defendant, asking if witness was
villiAg to sell back his inheritance. Witness
wrote in reply, saying the share had gone up
OQHiderably in value. He was prepared to sell
the share, which was a third, at a reasonable
priee, if defendant could have found the money.
The estate was now worth about £3,0C0.
Croe»>examined : Some time ago, when there
were five heirs, he valued the property at
UfiCQ, and would have taken £3J0. Since,
bowever, two of the heirs had died, and the
property had largely increased in value.
For the defence,
Qeoige Frederick Matthews, of Port Klizabetb.
the defendant, said when he became insolvent in
Ctpe Town, in May, 1882, he was a builder.
Witoeas did not remember notifying to the
tnuteein his insolvency his rights under the
will The Bank of Africa were the princlDal
crBdit(»B. Witness mentioned the inheritance
to the manager of the bank. Witness's idea was
that Mr. Jones had only bought one-fifth share of
the estate The value of the improvements made
is the various properties was about £1,000.
Cross-examined: At the time of the sale
witoesB thought it was quite fair to sell what
ns then a one-fi Cth share. It was only recently,
ifter taking advice, that he disputed the owner-
chip of the present one-third share of the
state.
This closed the evidence.
Mr. Innes, Q.G., for the plaintUf : The ques-
tion is does the law give the trustee the right
todiq)08e of the defendant's interest under the
N
will, for if not, this transaction is invalid as
against the insolvent. Now there are two facts
to be noted especially :
1. The will limits the children who are to
obtain benefits to those who survive the
testatrix.
2. The wUl directs that the absolute domimum
of the property should Iw transferred. In view
of this we must admit that this is a case of
fidei'eofnmit9i(my i,e„ Mrs. Matthews was
fiduciary heir, and after her death such of her
children as survived her shouM get benefits
after her. The case of Quin v. Baartman
(Buchanan, 1870, page 78) is important, and that
case must now be finally maintained or over*
ruled. If maintained it conclusively governs
this case. Can a fidei-commissary heir have
anjrthing to sell to a bana^jide purchaser for
value? Qtiin'sease has been criticised in two
ways:
(a) Either (because there is such a meagro
report of the case) that it is possible that the
Court may have held that though *' fidei-
commissary" words were used, yet it might
have been a case of usufruct in view of the
general provisions of the will, otherwise it is
difficult to reconcile that case with the authority
of Voet.
(b) Or, again, that the judgment depends
on the words of the losolveut Ordinance
(section 48) and not upon the strict common
law rights of Jidei-oommissiifn or usufruct. A
case criticising (^uius CA$e i» Nortje v. NoHje
(6 Juta, 9); see ai^o iStrydoin v. Strydom
(11 Juta. 425); /» re Zipp (Buch. 1878, p. 182) ;
De Oecit'i i^xecutm' v. Be Geest's Erecator
(4 Juta, 95). The remarks in these cases
regaiHiiog Quins case are certainly obiter dictas
but show that tne decision has been much
questioned. The 46th section of the Insolvent
Ordinance vests all the insolvent's rights first in
the Master, and then the 48th section vests them
in the trustee, though the words In the two
sections are not the same. "Wherever the
same is known or found," which occur in section
46, not being inserted in section 48, neither are
the words "nor as to which any right of
reversion shall then be vested in him." These
are not found in section 49 of Ordinance 64.
Why were they added ? Surely to show that
these rights are taken away from the insolvent
and vested in the trustee. A man during the
lifetime of the testator cannot sell his inheri-
tance under a will. But Voet and others hold
that a fpet may be sold^this is a « «» , and the
right has a certain tangibility about it. For
Hiddlngh v. Roubaix (Buch. 77. p. d6),
shows that the fidei-comminsary heirs may
prove in the insolvent estate of the fiduciary,
I
§0
and the anoinaloae poeition would uiae that
though their rights are so provahle they
cannot be sold if the trustee has no right.
This is not in the nature of a gambling
transaction; and the right can be lawfully
sold. E(B parte Burger (4 Shell, 106). The
right of fidei'^ommiuwrn cannot descend to
heirs, but yet it vests in a way and can be
proved. Is it not anomalous that it can not be
sold 7 It is not contingent in the sense that it
depends on the caprice of anybody, but it
simply depends on the natural course of events
and must fructify. Lange v. Liesching (Foord,
p. 65). Surely it was rights in the nature of the
Mpes mecestionu that the Legislature con-
templated in section 48.
Mr. Searle, Q.O., for the defend %nt: The
ordinary meaning of *' right of reversion vested
in him '* i- as, e.g.<, where a man has sold all the
life interest to another, he retaining the nmia
proprietoi. But it cannot refer to a contingent
claim such as this. As to proving a contingent
claim see Copeetahe v. Alewander (2 Juta, 187),
but there is not a word in the whole Ordinance
to provide for a contingent asset. The case of
Van Breda v. Master (7 Juta, 860) is very much
in our favour. In Quin v. Baartman the Court
must have lield from the whole tenour of the
will that though the term usufruct was used
yet that it was really a /idei-oemmissum.
Board Y. TUterton (IS 8.0. R., 164), the trustee
sold all his rights as trustee not the insolvent's
rights. Ras's I^stees v. Be Klerok's Exeotttor
(7 Juta, 118) lays down the law as to the pur-
chase of an inheritance. This is a pure fidei-
eommAssHmt there is no vesting— such rights as
chances and spes do not vest in the trustees.
atrydom v. Strgdom's TruH*es (11 Juta, 433).
What Mr. Jones actually bought was the
chance that something might be vested in the
insolvent before the confirmation of account.
The Ohief Justice: But how about the
acqmescence of the insolvent 7 At least so far
as the one-fifth is concerned.
Mr. Searle : But how can the insolvent be
estopped by anything that he has done? Mr.
Jones has suffered no prejudice nor was he
misled by the insolvent, nor did he buy any-
thing vested in the insolvent but in the trustee.
The chance was that the old lady might die
before the account was confirmed.
The Chief Justice; Can the trustee acquire
any rights which are not transmissible to heirs 7
Mr. Innes : See Be Geest*s Case (4 Juta, 96),
and the Chief Justice's remarks on page 96) ;
Qum V. Baartman, and section 49 of the Insol-
vent Ordinance. All these seem to show that
the trustee can. Qtiin's ewe was one of a fidei-
commissnm, Breda^t was not, and can thus be
reconciled. A fidei-commissary has rights whieh
a bondholder never has. Matthews certaialy
had no rights which he could transmit to helim.
CJL,V.
Pestea (Wih February).
De Yilliers, C.J.: The plaintiff parohMod
from the trustee of the defendant's estate **tlie
right, title, and interest of the insolvent to and
in the ezpectency of the ins<rfvent under the
will of John Parkin, dated the 27th of April,
1962." Quite independently of the use of the
term ** expectancy'* the plaintiff's counsel luui
candidly admitted that the will created a fidH^
eommissum, and that the legacy to the defendant
was intended to be conditional upon his
surviving his mother, who was the fldnciaty
legatee. In the absence, therefore, of indloA*
tions to the contrary in the will, the testator
must be held to have intended that the legaiey
should not vest until the condition has been
fulfilled, or in other words, until the death of
the mother during the defendant's lifetime.
Such is the dear effect of the decisions of this
Court in Van Breda v. Master (7 Juta, SeOX and
if a different conclusion is to be deduced from
the dectfion in QuUi v. BaartmtM then it nmat
once for all be said that the latter case can no
longer be supported. The Court has, howerrer,
on more than one occasion pointed out that the
case of Q^dn v. Baartman was very briefly
reported, and that the grounds of the judgment
are somewhat obscure. The defendant has
survived his mother, but before her death tha
account of his estate had been confirmed. He
therefore, under the 126th section of the
Insolvent Ordinance, was entitled to the land an
being property which ** reverted, descended or
was devised to him in mauner other than by
virtue of a right of reversion which was vested
in him at the date of the sequestratton of hia
estate." In the case of Qnin v. Baartman aa
well as in the present case, the English law waa
relied upon as supporting the contention that
the insolvent's contingent interests are iraiia*
mitted to the trustee of his estate, but the
language of the 48th section of our own Ordin-
ance is very different from that of the Acta
which establish the rule in Bngland. It is said
by Robson (on Bankruptcy, 7th B.D., p. 479)
that "all contingent and executory estates and
interests to which the bankrupt is entitled will
vest in his trustee," and in support of this view
he cites Bigden v. WUliamson (6 P.W.. 183):
There it was certainly held that a contingent
interest or possibility in a bankrupt is assign*
able by the commissioners, and the reatons are
thus stated by Lord Chancellor King, ''partly
because the bankrupt himself might hare
departed with this contingent interest ; also for
II
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91
ami .... the word pauiHlity is in aU
the later Btatatee touching bankmptey." In
6 Oeu. 11^ a, 80^ the words are '*all buoh
effechi of which tiie party wan poeseiMd or
interested in, cr whereby be bath, or may
expect nay profit^ posBibility of profit, benefit
er adrnBtnge whatsoever." Unfortanately for
the piniBtJIE our law has not spread the net
widf enongh to embrace contingent interests
•■eh as that which is now in question, and the
judgment of the Court must be for the defen-
d«ii with oostSL
Mr. Justice Buchanan: The rights sold by
the ^ trustee to the plaintiff were those conferred
upon the trustee by the iBth section of the
laeolTcnt Ordinance, and these again were
what were transferred from the insolvent to the
ir by the 46th section. These sections
that the cfEsct in law of sequestration
shall be to ** divest" the insolvent and to
"viset" in the Master, and subsequently in the
traslee, the insolvent's present and future
''estate." Thew provisions, I think, require
timt there must be an estate vested at the time
el ssquestration. The following words of the
48th section seem to me to confirm this view,
for they further confer upon the trustee any
ri^t of reversion then veiied in the Insolvent.
8o much as to present property. As to future
property the section goes on to give the trustee
a title to any property which after the date of
ssquestration and before the confirmation of
the aeeooBt and plan of distribution, may be
purrhased or acquired by the insolvent, or may
revert, do ece nd , or be devised or come to him.
This does not include a mere jpM
MSMSHMiJs .... or contingency not
darinfr that time vested in the insolvents
After the confirmation of the liquidation
aeeonnt the insolvent acquires property for
Umself, Bubjeot of course to the liability of
eiceotieD, until his rehiabilitation is obtained.
In this case it is admitted that the insolvent
had no vested interest at the date of sequestra-
tioB, and that the property did not accrue until
ksHT After hoth the confinnati<m of the account
tad the insolvent's rehabilitation. All the
dseiiions of this Court, with, it is extended,
ths eiception of the case of Quin v. Baartman,
bave clearly been based on the fact that vesting
bad taken place at the date of sequestration.
As to the case of Qwiu v. Baarimaai, the report
ihows that the arguments of counsel in that
esse were directed mainly, if not entirely, to
the question of vesting, and that the judgment
ta founded on that issue being affirmatively
deeided. It is possible that the uncertain terms
et the will in that case raise a doubt whether or
lotafafsetareptin^ bad taken place, and it
is that doubt which I think has created the
difficulty which has been felt in reconciling
that dedsion with the more recent judgments.
Whether or not it was a sound deduction to
draw from the will in that case, that there had
been a vesting, it is useless now to discuss.
Judging from the report that was the deduc-
tion actually drawn by the Court, and having
thus found on that issue, it followed as a matter
of course that the property in question had
passed to the trustee. If that is the correct
ground of the decision, then Quin v. Baartnian
falls into line with all the subeequent cases, and
there is no decision on record to the effect that
a merely contingent and unvested interest
paeses by operation of law under the 48th
section to the trustee. This judgment now
definitely setUes that it does not. The provi-
sions of the old Ordinance No. 64 were more
against the insolvent than is the present law.
His lordship the Chief Justice ba^ shown that
the words of the old Bnglish statutes were much
wider than those used in our Ordinance. Since
the adjournment I hsve referred to the discus-
sion on the 48th scotioii in the old Legislative
Council at the time of the alteration of our law,
audi find it was expressly intended to make
our law more restricted in operation than was
the Bogliah law at the time. I concur in judg-
ment being given for the defendant with costs.
Mr. Justice Maasdorp concurred.
[Plaintiff's Attorneys, Messrs. Scanlen 8l
Syfret ; Defendant's Attraneys, Messrs. Van Zyl
k Buiesinn^. |
eBBBH A»D BBnrroN y. duraan
ASD AVOTHEB.
)
1897.
Feb. 26th.
Contract — Breach — Damages — Tender.
This was an action brought by Messrs. Qreen
k Brinton against Messrs. W. k D. Duraan to
recover the sum of £280 as damages for breach
of contract.
The plaintiffs' declaration alleged :
1. The plain tiifs carry on a general business
together in partnerehip at the Draai Vlei, in
the district of Prieska, under the style or
firm of Green k Brinton; the defendants
are farmers, and both reside at Kommandant's
Kraal, in the district of Britstown.
2. On or about November 80, 1896, a contract
of purchase and sale was entered into between
the plaintiffs of the one part and the defen-
dants of the other part. In terms of the said
contract the defendants sold to the plaintiffs,
who purchased from them, a quantity of chaff,
estimated by the parties to be about 100 bales.
The purehase price agreed upon for the said
i
92
chaff W8B 10b. 6d. per bale of 800 lb. weight, de-
livered on defendants* farm, but the eaid defen-
dants were to have the option of delivering the
said chaif at the plaintiffn' farm, in which case
they were to be entitled to 1r. 6d. per bale
additional.
3. Thereafter the plaintiffs were ready and
willing to perform their part ot the said con-
tract, and on or about the 8th December they
applied at defendants' farm for the delivery of
the said chaff, and were prepared and offered (o
pay the purchase price as agreed for the same.
4. The defendants wrongfully refused to carry
out their part of the said contract, they declined
to make delivery of the snid chaff, and they
repudiated the said contract.
6. By reason of the defendants' breach of con-
tract as aforesaid, the plaintiffs have suffered
damages in the sum of £2S0.
The plaintiffs claim from the defendants and
each of them : (a) Payment of the sum of £290
for damages as aforesaid ; (b) alternative
relief; (0) costs of suit.
The defendants in their plea alleged :
1. They admit the allegations in the first
paragraph of the declaration, but save as is
hereinafter pet forth, deny those in paragraphs
2, 3, 4, 5.
2. On or about October 28, 1890, and at Kom-
mandant's Kraal, it was agreed between
defendants and one Devenish, acting for and on
behalf of plaintiffs, that defendants should sell
to plaintiffs at lOs. 6d. per bale as much chaff
(not exceeding ICO bales) as defendants should
have left over after filling their own storehouses,
the plaintiffs to supply bags therefor at Kom-
mandant's Kraal as soon as defendants had
finished threshing.
3. Thereafter, on or about November 90,
defendants gave notice to plaintiffs that the
said chaff was lying ready for plaintiffs, and
that the bags must be delivered at Kom-
mand ant's Kraal on or before Decem))er 4, and
plaintiffs (hereupon supplied two bags, which
defendants filled with chaff for plaintiffs.
4. The plaintifib did not deliver the remainder
of the bags by December 4, and thereafter the
defendant David Duraan, being at Britstown
on December 6, agreed with the plaintiffs that
the time within which the said bags should be
delivered should be further extended ; in ignor-
ance of the above arrangement, the defendant
William Duraan, at Kommandant's Kraal, on
December 6, sold the said chaff (except the said
two bales), to wit forty bales, to one Le Roux at
£1 per bale.
5. The defendants are willing, and have ten-
dered, in order to avoid litigation, to pay to the
plaintiffs the sum of £40 as damages and costs
to date ; or, in the alternative, to detiver foitf -
two bales of chaff to plaintiffs at Kommandaiil'a
Kraal, and to pay £10 aa damages with coata to
date, the plaintiffs to pay for the said chaff at
the rate of 10s. 6d. per hale, the defendants
repeat the said tender.
Wherefore subject to the above tender tiie
defendants pray that the plaintiffs' claim be
dismissed with coats.
The plaintiffs' replication admitted the ten-
der, but was otherwise general.
On these pleadings issue was joined.
Mr. Rose-Innes, Q.C. (with him Mr.
McGregor), for the plaintiffs.
Mr. Searle, Q.C. (with him Mr. Rooe), for the
defendants.
For the plaintiffs were called :
John N. Green said he was a partner In the
plaintiff firm, who carried on the bnsinesa of
hotelkeepers and genera) dealers at Dmai Viet
farm in the Prieeka district. Towards the end
of December plaintiffs ran short of chaff, nad
sent to defendants a man in their employ
named Devenish, to purchase chaff froni
the defendants, and defendants promleed
to supply the chaff at lOs. 6d. per bale.
Defendants were pressed for a time to be named
when the chaff could be delivered, when th^
said they would write to say when the first two
wagon loads would be delivered. There would
be twenty -two bales in a load. This was said
on November 1, but the promise to write was
not kept. Devenish was afterwards sent over
to defendants' farm about the chaff. Chaff was
much required by witness in oonseqnenoe of tho
rinderpest bringing abont an increased numher
of passengers. On the night of Novmnber 1 Mr.
David Dnraan eame to witness's house and said
plaintiffs should have at least 100 balsa, and pvo-
bablyl20to 130, at any rate witnesa's firm
should have all above what waa required for da-
fendants' own use. After supper defendant
asked about bags. Witness said he waa aony,
but they had no bags. Defendant then told
witness he was unable to obtain any. Deveniak
then said, *' Mr. Durann, you told me that you
had forty bags." Defendant then said that tha
forty bags were owing to him, but he had beoa
disappointed in getting them. Witness then
said he expected 100 bags of wool by mula-
wagon, and he would let defendant have fifty-
empty bags, but could spare no more. Defend-
ant said, *' You must send them as soon aa yoa
can," and witness promised to do so. Theba^
were afterwards sent to defendant, and th^ were
afterwards returned empty by defendants with a
letter regretting that they could not let plaintiff^
have the chaff. At that time witness did not
know that defendants had sold the chaff to Roost
'II
III
>■
V
»
e
t
t!
1
n
■
d&
fcillibtie. A^t«rw&r<U the mstter waa put
U»teteDdsat mn agrent^ «nd a letter of demand
wfiiUen. He limd fltl^Pr»yB bought chaiE from
hoMn'mbftf;*, itnci afterwards returned the
biPk hi oo&aeciiiei&oe of the breach of con-
nd, pluntliEB were left with absolutely no
4dL Pltintitta had to telegraph all round for
ckff. Wltaen oould obtain no chaff in the
Mttj. UHSmatelT 100 bales were bought
ftia Mr. John I>eveiiiflh at Stellenbosch,
wUdi eoBt, delivered at plaintiffs* place,
ttlli.8d.a bale. The ooet of thechafE, if
dittfered by defendanta, would have been
Ul<d.abaie. In December plaintiffs got from
0feL to M a bale. The increase in price was
bMaoK ot doTemment being large purchaeers,
of traTellers, and drought.
Defendant did say the
lyhiS on the tramp floor, and might
ifMltbeiebe damaged by weather. He did
■il try at Hont Kraal for chaff. He had
balea weigh 870 lb. ; the weights raried.
eand got into the chaff.
Bereaiab, of Bteilenboaoh, farmer, said
farmed at one time in the Prieslia dis-
about eighteen miles from defendants*
He knew defendants' farm well. He
eaftd -^lalntifb* obafE of 900 lb. to the hale at
tSi^ a b^e. He bad to pay 8s. for carriage of
IWk lb. of meal from De Aar to Omdraai Vlei.
Aj^astas B. Devenish said he was in the em-
of plaintlfls as clerk. He corroborated
the witaeea Oreen had said as to his risit
to boy chaff. He saw the senior
who offered to sell chaff at 12b. a
Witnaaa offered 10s., and eventnalir the
of ICa Cd. per bale was fixed. Defendant
wttnaas what quantity he woyld take, and
he ooold supply 190 to IfiO bales, but
psomiaed to supply 100 bales. This
oa the 96th Oetober, and defendant pro-
to write on the following Wedneeday.
Flahitiif again went over, when defendant said
would be delay as the wind prerented them
_ on wHh tramping. In answer to def end-
t'a reqoeat lar bags, witness said they would
be able to send some.
Croaa-ezamined : Defendant said he must be
helped with bags, and witness said he expected
about Saturday, when they would be sent
to defendants. There was rain and wind
U the time, and the chaff was lying in
/
▼an der Merwe said he was postmaster
a* Omdraais Viet. Witness went with Mr.
Dereolah to defendants' farm just for a trip
iato the country. He heard defendants talking
to the last witness. Mr. David Duraan offered
$a ael| aome ^haiC, and said he expected a very
good crop that year, and all orer what he would
require himself he would sell to plaintitb. He
said he would guarantee from fifty to 100 bagi^.
Witness was abo present at the hotel when Mr.
David Duraan said he would be able to supply
from 120 to ISO bags of chaff. Witness was.
certain that Mr. Willem Duraan said he had
forty bags.
This closed the plaintiffs' ease.
For the defence,
Willem Duraan, one of the defendants, said
he remembered Mr. Devenish coming to his-
farm about the S8th October latt. Chaff wta
mentioned, Mr. Devenish aaking if witness would
have some chaff to ppare. Witness replied yes, if
there was nodamage to his crops. Witness effefad
the chaff at 12s. if plaintifb would supply bag*.
Derenish offered 10s. 6d., and this was accepted,
plaintiffs to supply the bage. Witness had net
a single bag. Witness generally sold chaff on
the terms that purchasers supplied bags.
Devenish saw the chaff houses. Witness had
never yet weighed a bale of chaff. He said
nothing to Devenish as to weight, witness
liad never sold by weight. Witness afterwards
saw Devenish when the chaff hou»e was nearly
full, and told him he wouid send
the chaff over on receipt of the
bags. There was a fearful wind on.
Plaintiffs did not send bags, and the chaff wss
lying on the tramp floor. Two bags were sent
by plaintifEs and were filled by witness; but
they conld not be sent as the donkey in plaintiffs
cart was not able to take them. Witness after-
wards sold forty bales of the chaff at £1 to one
Le Boux, who brought bags. The chaff was
waiting for a week on the floor, and he
though about thirty bales were wasted. There
was rain and heavy winds about this time.
By the Court: Witness did not send a mes-
sage to plaintiffs, as lie had sent no bags.
Examination continoed: Witness expected
the bags on the Friday. He thought the bags
were not coming, so he Eold the chaff.
Cross-examined: Witness finished the last
tramp on December 4. He had never measured
his chaff house, bnt he thought it would hold
forty bales. When he sold to Devenish he ex-
pected to get about 100 bales. Le Boux had
been to buy chaff on December 2 ; the sale was
effected on Saturday, December 5.
Re-examined : It rained all night on De-
cember 2, and there was a fearful wind. Wit*
ness lost about thirty bales of chaff. Witnesf>
had never supplied bags in his sales.
David Duraan, the other defendant, son of
the last witness, corroborated the evideaea
given by his father. The weight of balea varied ^
94
•ometlmef a bale woold w«igh ooly 2801b.
Tbeir oiiaff WM DOt sMidy ohaff. DefeodantB
bad mo tags on the farm.
O roM axaminad : They flniahed tramping on
Baoember 4. They began in November. They
oontinaed tramping almost every day.
F. A. Venter, who resided near the farm of
defendants at Beer Vlei, said he had purohaeed
ebafl between the 10th and 20th November in
that district at lis. On the 10th December he
booght ten bales at 10b. He had bought this
■MNithatlSs. Ohaff was always sold by the
bttla at Beer YleL About 240 lb. was the
average weight of a bale at Beer VleL
B. A. Stsytler, farmer, in the Philip's Town
district, who had a store about forty-eight miles
from defendants* farm, laid he used to purchase
chaff from Beer Ylei The usual weight of a
bale was 260 lb. average. He bought chaff last
December tem 9s. to ISk a bale. He bought
UK) bales. Witness was now selling at 16s. a
Jacobus Duraan, eldest son of the defendant,
said his chaff was sold partly to Le Boux, who
paid M a bag. That was in the beginning of
December, about tlie same time his father's
ohaff was sold. Another part— forty bags— was
sold to Lillienfeld & Wright at ISk 6d. to 16s.
This was about twenty days before. He knew
of no sales of chaff above £1. The average
weightof a bale was about 280 lb.
James Higgo, farmer. Beer Yley, said he had
bought chaff in December in the district for
10s. 6d. a bale.
Petrus le Boux, farmer in the division ot
Prieska, laid he went to defendants' farm on
November 2 to buy chaff. He afterwards
bought forty bags of chaff from the defendants
at £1, supplying twenty-three of the bags him-
sell He made about 6s. a bag profit. The
average weight of a bag was about 280 lb.
This closed the evidence.
Mr. J. Bose-Innes, Q.O., was heard for the
plaintiffs.
Mr. Searle was not called upon.
Judgment was given for plaintiffs tcff £4 J, the
amount tendered, and costs up to date of
tender.
The Ohief Justice : In this case the plaintiff
sues upon a contract which is of a most vague
description. It is a contract for the purdhase of
so much of defendant's crop of ohaff, as he did
not require for his own use. Such a contract
places the puroluwer entirely at the mercy of
tlM seller, and if a person does enter into a con-
tract of this vague description he cannot expect
when lie comes into court to recover damages
upen the basis of the claim in the present case. I
K|m by no msaiis satisfied tl^at if f here had been
no tender at all plaintiffs would have susNMeded
in the action. Buppose defendant had re-
quired the whole quantity for his own uss I do
not think plaintiff could have recovered. How-
ever, this is not the point to be decided now see-
ing that the defendant pleads liability to the ex-
tent of 440, and the only question is whether the
amount tendered is sufficient. The plaintiff has
produced an elaborate calculation from which
he would seem to show that the actual cost of
ohaff to him similar to that which he purchased
from the defendant was A2 lis. 8d. per bale.
This however is based upon the supposition that
the defendant was bound to deliver to the plain*
tiff bales weighing 801 lb. eaoh, but I am per-
fectly satisfied from the evidence that if the
defendant had tendered bales a sighing only 230
lb. eaoh thfy would not have been refused by
the plaintifC. Assuming even that the calcula-
tion is right the question is would the plaintiff
be justified in going into the Stellanbosoh
market, and there buying ohaff whioh would
oost him m lis. 8d. if within the immediate
neighbourhood he could have got it much
oheaper. From the evidence I am satisfied that
he could have, at all events, bou^
in the neighbourhood at the price of
4118f.6d. Mr.LcBouxgotthechaffatAl. The
tender of £40 is on the basis that the plaintiff
would have made a profit of about 2u0 per cent
and it is not shown that he has sustained mors
than £40 damages. Plaintiff may have shown
that he has made bigger profits, bat then he
sold in driblets, in which case questiiMM ol
other expenses entailed would come in. Mr. Le
Boux only made 6s. a bale profit Thedafimdaat
makes a tender of £1 per bale, which, I think,
is fair and reasonable. There will, thaiafna,
be judgment ton tJie plaintiff in terms of the
tender, with costs np to the date of tender, all
costs subsequent to that to be paid by the plain-
tiff.
Their lordships concurred.
[Plaintiffs' Attorneys, Messrs. Tan Zyl ic
Buissinn6; Defendants' Attccney, P. de
Yilliers.]
1
i
It
i
t
96
SUPREME COURT.
Bigbt Hon. Sir J. H. ms YiLLtflRS,
.1C.Q. (Chief Jmtioe), Hon. Mr.
Utobahak, and Hon. Mr. Juitice
PBOVIBIOHAIi BOLL.
feAM ▼.
r i8i»7.
IFeb. 27th.
Mr. MdieBo Applied for proTisioiud sentence
en £S0 intexeii due on n mortgage bond lor
OJOOOi, nt the rmte of 6 per eent^ from let July
lo SM December, 18M.
JUBIBK T. WnOBK.
I mi^ed for prorieionftl sentence
ptemiflMry note for £70 ISsn lees £8 paid
Hr.CMtene
ILUQUID BOLL.
OOOnCIL OF GAPS TOWH V. MUBI80N.
Mr. Cloee applied for judgment under Bute 829
id} for 448 Ifie^ leM £10 paid on account, and for
BiaCH A3XD CX>. V. DK YILLIBBa.
Mr. Tredgold applied under Rule 829 (iQ fw
iadgment for £18 li. id., being ooete incurred in
an aetlon mi law.
Graatod.
J. woiwamrs and go, v. a. mat Aia> oo.
Mr. Clooe applied for judgment under Bule
(£) for the sum of £2 7b. 6d^ balance of a
debt of £66 Ite. lid.
Orvnted.
▼AH DBB BTL AlTD 00. ▼. LCCKS.
Mr. Boot applied for judgment under Rule
id) for £88 te. 8d., being the amount of a
which the defendant undertook to
Chanted
ADMUnOH.
Mr. Macgr^gor applied for the admiieion of
Mr. Xnest Huret Ashpitel as attorney and
The Court granted the application, the oath to
fee taken at Kimberl67 hefore the Registrar of
tttHIgh Court.
OBNBBAL MOTIONS.
SCHAAP AND OTHBB8 V. BOLOMOir.
Mr. Maqgregor applied for the award in this
matter to be made a rule of Court
The Court granted the applicatton.
nr THB MAI TBS OF THB PBTITIOH OF BMIlJi
HENBT VAN HOOBDBN.
Mr. Tredgold applied for authority to the
Begistrarof Deeds to issue a certified copy of a
moitgagebood dated February 29, 1898, passed
by John GkKxiison in ftiYour of the said Bmile
Henry van Koordeo, the original bond having
been lost.
The Court granted the application.
IN THB MATTBB OF BOSINA BLIZABini
MULLBB.
Mr. Tredgold applied for the appointment of
a curator ad Utem in proceedings to have her
declared of unsound mind.
The Court granted the application, the summons
to be served on the alleged lunatic a^ well as
the curator, returnable at the Circuit Court,
Mossel Bay. The brother, Mr. John Alwyn
Mulier, was appointed ctirator ad litem.
IN THE MATTBB OF THB MINOB JUDD.
Mr. Buchanan applied for authority to
the Master to pay out of the amount to
the credit of the minor Fanny Judd a sum
of £16 per quarter for eight consecutive
quarters, to be applied towards her maintenance
and education at the educational institution at
Worcester known as the Huguenot Seminary.
The Court granted the application.
IN THB MATTBB OF THB UNION BOATINO OOM*
PANY IN LIQUIDATION.
Mr. J. Bose-Innes, Q.C., presented the formal
report of the liquidators on this company and
the Port Eliiabeth Boating Company becoming
amalgamated.
The Court received the report No order
granted.
IN THB MATTBB OF THB POBT BIJZABBTH
BOATING COMPANY IN LIQUIDATION.
Mr. J. Bose-Innes presented the formal
report of the liquidators on this company and
the Union Boating Company becoming ama1ga«
mated.
The Court received the report No order
granted.
96
IN THB MATrm OF THB MDfOBS OOC.
Mr. Macgregor applied for authority to the
Gliief Magiatiate of Bast Griqaaland to pay
QDt: (l)Thati]iii of £5 out of the moneys to
the credit of the minora for their immediate
maintenance; (2) the sum of Al lOs. per month
for their maintenance and education.
The Court granted the application.
IK THE MATTEB OF THE MINoB DOLL.
Mr. Buchanan applied for authority to
the Master to pay out of the money to
the credit of the minor sufficient to pay for the
carrying out of certain drainage works amount-
ing to £44, and also to defray the cost of taking
out letters of confirmation to the tutor dative
and of this application.
The Court granted the application.
BAILEY v. BAILET.
Mr. Close appeared for the plaintiif. De-
fendant in default.
This was an action for divorce instituted by
the wife against her husband. The parties
were married at S. Mary's Church in Port Eliza-
beth on July 31, 1878. There were two children
of the marriage. The custody of the children
was asked.
James Lord, dock labourer, said he knew the
plaintiff and defendant very well indeed. He
identified the plaintifE. He knew a woman
named Anna Henry, with whom defendant was
now living. The woman bad had children since
she had lived with the defendant.
Laura Bailey, the plaintiff, said they had no
property on their marriage. The children were
reepeetively seventeen and sixteen years of age.
Witness wished to have the custody of them.
The Court granted a decree of divorce as
prayed, with custody of the children, defendant
to piV coats,
[Plaintiff's Attorney, D. Tennant, jun.]
KOOHAN V. MOOKAJff.
Mr. Graham for plaintiff. Defendant in
defanltw
Tfaia was an action for divorce instituted by
the husband on the ground of the wife's adul-
tery. There was one child of the marriage.
Befl^aldD. H. Barry, clerk in charge of the
marriage register, proved the marriage.
Robert Philip Noonan, the plaintiff, said he
was a sign writer. Until recently he resided at
Johannesburg. He was married te Elizabeth
Koonan in 1891. They afterwards resided at
Cape Town and Mowbray until about October
three years afterwards when witness went to
Johannesburg. He left his wife with her mother
in Mowbray. They had lived moderately hap-
pily. Witness supplied his wife with sufficiani
money for her support. There waaoDoefedM
Kathleen, four and a half yean of age. His
wife joined him on the 15tb December, £696,
and stayed with him two and a half mimths.
Then she returned to Mowbray. Witness after-
wards came back to Mowbmyi And found that
his wife was pregnant His wife left him the
beginning of March, 1896, and became down in
ApriL A child waa ubaequenitly bom in
August. His wife subsequently told him the
child was that of Thomas Lindenbaum
Thomas Liudenbaum, cart driver, identllied
the photo produced. He knew the lady in Decem-
ber, 1895, and had had improper intercourse with
her. He had given her certain amounts of
money. Witness did* not know the husband at
the time.
The Court granted decree of divorce, plaintiff
to have the custody of the child, defendant to be
delared to have forfeited all benefits under the
community.
STUBK AMD CO. V. DIETKELE.
Mr. J. Bosc'Innes, Q.C.,appearedfDrtheap|)ll*
cant; Mr. Searle, Q.C., for the reepondeni.
This was an application on behalf of tha de^
f endant far leave to file an amended plea i»
this pending suit.
The Court declined to grant the order, the
queeUon of costs to stand over.
IN THE ESTATE OF THB LATE KIOHOLAS W.
Mr. McLaohlan applied for leave to the ex-
ecutors to apply AlOO out of money adminiaterad
by the General Estate and Orphan Chamber in
the repair of certain buildings at Salt River.
The Court granted the application on the con-
dition suggested by the Master, that aooofnnts
should be rendered to him.
IV THE MAZTBB^ OF THB FE11S90II OP 'LOUflBL
PETBOMSUJL SHOOK.
Mr. UM/ogngOT applied for leai« to aigii pw mm f
of attorney to pass transfer of landed property
without the assistance of her husband.
The Court granted the application.
IK THE ESTATE OF THE LATE JOHN HOBKHTS.
Mr. Jones applied for leave to mortgafis
certain cottages to pay for drainage expensee.
The Court granted the application; the
property to be mortgaged for such sum aa th0
Master may direct.
&?
D THK MATXKR OV THB VINOB PENH.
Mr. Benjamin applied for the Court's
metioB to mXe of erf at Molteno.
The Court grsated tlie application.
SUPREME COURT.
IBetoRibe Right Hon. Sir J. U. DE Villikrs,
?.C^ K.C.M.G. (Chief Justice), Hon. Mr.
Jwtke BucuANAK, and Hon. Mr. Justice
Maasdohp.I
YiLJoss; y. vii«roBN.
f 1897.
I March Ut.
Mr. Kacgregor appeared for the plaintiff, and
defendant was in default.
Ihis was an action for the restitution of oon-
jogal rights institated by the husband, a farmer
at Carnarvon. The parties were
riedon the 90th July, 189^, at Garnaryon,
witfaflut community of property. In May, 1896,
the defendant left the plaintiif and went to
Johannesborg, and refused to return to the
JBdpnjild D. H. Barry, clerk in cbaive of the
register at the Colonial Office, proved
liioolaas Johannes Stephanus Viljoen, the
now residing in the district of Victoria
he signed the register of marriage
The marriage took place on July SO.
XIh^ were married at Carnarvon. On
18, 1891, his wife told him they had
separate. She said she had married him
her wilL Witness was not willing
to a separation. Subsequently
was eo much unpleasantness that plaintiff
at avray. Witness saw his wife again on his
when she asked him what he had come
beck for. Witness replied that he came back
to try to make up the quarrel, when defendant
weat into her room and locked the door, and
to have anything to do with witness,
had not seen his wife since.
The Ckrart granted a decree for the restitution
of eoajngal rights, defendant to retnrn to her
oo or before March 81, failing which a
nisi to issue calling on defendant to show
why a decree of divorce should not be
lPl3iniUr§ Attorney, V. A. van der Byl.]
O
( 1897.
VAJf DBK HBEVEB V. DU TOIT. s March let
I ,« 6th
Trcspfies — Danvnjes — Volenti iiou fit
injuria.
ThiH was an action to compel the removal of
a certain fence erected on the plaintiff's farm
by the defendant, and to compel the erection by
him of another fence, and for damages for tree*
pass.
Mr. J. Rose-Innes, Q.C. (with him Mr.
Buchanan), for the plaintiff.
Mr. Searle, Q C. (with him Mr. Casten**), for
the defendant
Plaintiff's declaration was as follows:
1. The plaintiff resides at the farm Sliugcrs-
hoek, and the defendant at the farm Matjies-
fontein, both situated in the district of Hanover
and the parties are the duly registered owners
the said farms respectively.
2. The farm Slingershoek adjoins Matjics-
fontein, and the plaintiff annexes hereto a
rough sketch showing the boundary line betw een
the two farms, which line is indicated by letters
upon the plan.
8. In or about the month of March, 1^96, an
agreement was entered into between the plain-
tiff and defendant in terms of which the
defendant undertook to construct a fence along
the said boundary line from the point A on the
plan to the point B, in consideration that the
plaintiff should erect a similar fence from A to
H. It was specially agreed that the fence should
consist of six wires— one wire being barbed-
run through iron posts twenty yards apart, the
wire used to be No. 7, and the laces to be of
No. 9 wire.
i. The plaintiff has duly carried out his part
of the said contract, and has duly constructed a
fence of the said description along the line A H,
but the defendant wrongfully refuses to carry
out his part of the contract by constructing a
similar fence as aforesaid along the line A B.
5. In or about the month of May, 1896, the
defendant wrongfully and unlawfully entered
upon the plaintiff's farm and constructed a
fence through a portion of the said farm ; the
poeition of the fence so wrongfully constructed
is marked by the letters C B D on the plan.
6. By reason of the defendant's wrongful tres-
pass as aforesaid, the plaintiff has suffered
damage in the sum of £100 sterling. He has
requested the defendant to remove the said
fence, bnt the defendant refuses to do so.
The plaintiff claims : {a) An order compelling
the defendant to erect a fence of the description
set out in section 8 hereof along the line marked
I A B in the plan annexed hereto, or in the alter*
98
native {b) payment of the sum of £90 ; (c) an
order compeUing the defendant forthwith to
remove the fence erecti*d by him along the line
C E D on the said plan ; id) payment of £100 as
damages ; ie) alternative relief with costs.
For a plea to the declaration the defendant
said :
1. He admits the paragraphs 1 and 2, save that
he does not admit the correctness of the rough
sketch annexed to the declaration, but craves
leave to refer to the sketch annexed to this plea,
showing the boundaries of the said farms, and
of the farm Carolus Poort adjoining them.
2. In or about the month of If arch, 1896, an
agreement was entered into between plaintiff,
defendant, and one Petrus Daniel du Toit,
owner of Carolus Poort, whereunder it was
agreed that the said farms should be fenced as
far as their common boundary, but in order to
facilitate the said fencing and to save expense,
it was agreed that between certain points marked
upon the said sketch the line of fence should not
follow the actual boundary lines, but that the
fencing should be constructed as follows : The
defendant should construct a fence between cer-
tain points on the plan, the plaintiff between
oertain other points, and the said P. D. du Toit
between other points.
3. Thereafter the defendant duly completed
his portion of the said agreement by construct-
ing a fence, fie admitted that in so doing he
entered upon the plaintiff's farm, but denies that
he trespassed, and says he went thereon with
plaintiff's knowledge and consent. Save that
he admits that the plaintiff has constructed a
fence between the points mentioned in para-
graph 4 of the declaration, the defendant denies
all the allegations in paragraphs 8, 4, 5, and 6.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
The replication was general.
On these {headings issue was joined.
Johannes Jacobus van den Heever, the
plaintiff, said he was the owner of the farm
Schlemmer's Hoek, in the district of Hanover,
and he was in possession of an agi^eement be-
tween himself and his father by which
witness held the farm under certain obligations.
On March 30 witness and the defendant came to
a verbal agreement as to fencing the boundary
between the farms of plaintiff and defendants
It was agreed that witness was to fence from
the points A to H on the plan produced, and
that defendant was to fence from A B. The
fence was to be made in the way specified in the
declaration. He got a man named Boux to do
his portion, and for this work he had paid. He
afterwards had a conversation with John du
Toit, of Carolus Poort, as to a suggested ex-
change, but no lines were decided on. After
this witness saw the defendant in the beginning of
June. The defendant said he and his brother
John had made an exchange of the piece of
veld. Witness said he only suggested the
exchange, which was provisional upon his
father's consent, and witness held the
defendant to the line frem A to B.
At that time Boux was working on
the line from A to C. On the 6th of June they
had got as far as the point B. Defendant after-
wards offered witness a piece of veld in ex-
change, but witness said then he wanted to keep
his own. Then John du Toit proposed to settle
the dispute by buying the piece of veld defend-
ant was fencing in, but witness said he coold
not do so without the help of his father. Then
defendant said he would sooner take up the fence
and put it on the boundary line than hire the
piece of veld. Up to that time, witness had not
communicated with his father. No agreement
was come to. Afterwards notice was given to
the defendant to remove the fence and cease the
trespass. The piece of ground fenced in was
about eight morgen, and witness valued it \eTj
much as a good piece of veld for his sheep.
The ground was worth £2 lOs. a month.
Cross-examined: Witness did not supervise
the erection of the fence at the point E, and was
not present when the wire was fixed. Witness
never raised any objection to the fence whilst it
was being erected. Defendant spoke to witness
about a suggested exchange of the triangular
pieces of land upon the plan. Defendant-, how-
ever, would not give a piece equal in size to the
piece fenced in.
Be-examined: In March, 1896, witAeas
called at old Mr. Du Toit's house in Hanover.
Witness, however, could not remember anything^
being said about the exchange. Old Mr. Du
Toit said on the 4th July that he did not want
the exchange. Witness's father did not want
the exchange.
By the Court: Defendant first came on to the
ground from D to E in June. The men were
there a week. Witness allowed them to go oo,
and said nothing. They were still busy with the
fence when he told them they were trespassing.
G. P. van den Heever, farmer, in the district
of Hanover, the father of the plaintiff, said that
on June 20 his son told him all about the fence.
On Jdne 80 the parties met to settle the dispute
if possible. Defendant was present, and said
that the plaintiff had given him the piece of
ground fenced in. Witness objected, as the ex-
change was not fair.
John Boux said that all he was employed to
fence in by the defendant was from A to C.
Defendant wanted to fence around the slnit, and
99
iibd plaintifTs permissioD. Witness advised
iditBtiff not to oonsen^ to tliis, but to have a
JCTEctpQtbelaw^ tHe w^ire acroes the sluit, and
«o follow oat the ((traislit lioe. This oonversa-
tioo took place oa April SO. Witness had then
begm the work for tlie defendant Mr. DuToit
aod plaintiff and liimaelf naarked the line off.
CroBi-exammed : He lieard plaintiff sayde-
fenduit might take a detonr to g^et on to the line.
Witoeee was preeent ^rlien thej finished the
■wkfiom S to C. Witness then had further
vorktodo.
Jaa ZachartBft BoojrBen, farmer, residing in the
districi ot HanoTer, eaid lie was present at the
Bceting ofQ the 19th June. Jmn du Toit was
pre^nt, and said the question of exchange mnst
Ve MtUed -, Jan dn Toit afterwards said the de-
fendant ought to have stopped the work of
feaeiBg until the dispute was settled.
Jan du Toit then snggeeted that plaintiff should
mO the piece of land, hut defendant said the
expense ot transfer would be as much as the
land was worth. Then something wss said as
to luring, but the defendant said he would
rather take up the fence and put it on the
hoandary, Bnbeequently exchange was sug-
gested, but plaintiff would not accept the piece
of land offered by the defendant.
Petra? Jacobus dn Plerais, who resides on
plalBtifTs farm and who was present at the
sting on June 19, said there was no agree-
it eome to at that meeting as to the fence.
This closed the sTidenoe for the plaintiff.
War the defence,
I>. J. du Toit, the defendant, said that he
went to the spot with the plaintiff in April to
the line. Plaintiff said they must ride
the line. They did so, and when they got
sluit, he said they must make some
settlement Afterwards a line was agreed
vad in May witness began upon the fence
1 tbe line D and B. It was finished by the
id of May. Whilst the work was going
plsdntiff did not object uid every-
g was completely finished before
ly oibjeetion was made. The land defendant
to give up in exchange was better than
of plaintiff. Plaintiff had been using the
of ground to grase cattle for the last six
CrooB-examined: Witness was quite willing
for pI«iDtiff to take up the fence, and put it
oa the line A and B. It was easier to
cHrer plaintiff's land than to follow the
booBdary line, where sereral sluits would have
to be GiosMd Witness and Jan du Toit met to
gether and fixed the line. Witness claimed the
right to use tbe piece of ground which plaintiff
mki wMs bit.
Paste* (6th March).
The hearing of the case was resumed.
John duToit farmer, living at Carolus Poort
in the district of Hanover, deposed that he and
his brother had hired the farm from his father,
who had a life interest in it. He knew the
plaintiff, and met him in March last at
Hanover. Plaintiff wanted witness to go with
him to his father, in order to arrange some
deviation of the boundary line between the two
farms. Plaintiff wanted to exchange a small
piece of land for another on the farm
Oarolus Poort. It was arranged that his brother
Daniel should give up a comer piece in ex-
change for a piece to be given by witness. Wit-
ness afterwards went upon the ground with two
of his brothers and the plaintiff, and a line was
marked off. He knew the line fenced off by
his brother. It was the same line as was
marked off on that day. Witness was now
willing that the plaintiff should have a piece of
Carolus Poort. the same sise as that fenced in by
the brother of witness.
Cross-examined : The line C B was a difficult
line to fence, and this was the reason why the
line E D was fixed upon. This was because
of the great difficulty in fencing over the sluits
on tVe original boundary.
PetruB Daniel du Toit son of the defendant
a farmer, living at Matjesfontein, sa!d he made
the fence now in dispute, up to the point E.
The work took three weeks. There were three
people employed. During the time the fence
was being made the plaintiff came on the spot
three times. On the third occasion of plaintiff
coming he said the ends would be tied; the
fence was all right.
Hendrik van der Merwe, of Modderfontein,
who lived last year at Mati'esfontein deposed that
he worked on the fence with the last witness. H e
remembered Eeeing the plaintiff three times
while the work was going on. The flags showing
the line of fence were already there the first
time the plaintiff was there. On the third
occasion they had finished planting the poles
and were ready to tighten the wire. The
plaintiff helped to untie one of the rolls of
wire and never said anything. Witness had
never heard plaintiff make any objection to the
fence.
J. van den Heever, the plaintiff, recalled,
stated that it cost him to make the fence £36,
including poles and labour. This was on the
line C E b G.
This closed the evidence.
After argument judgment was given for the
plaintiff with costs.
The Chief Justice said: This action has a
threefold object. First to recover damages for
100
an aUefi^ed treapaBS ; seoond to compel the de-
fendaot to remove a fenee which he has oon-
Btracted on the plaintiff's land, and thirdly, to
compel the defendant to place the fence where
he had agreed by his original contract to place
it. As to the claim for trespass I am of opinion
that the plaintiff is not entitled to succeed,
because at the time when the alleged trespass
took place the fences were placed upon the plain-
tiff's land, the plaintiff aaving provisionally
consented to their being there placed, and under
the circumstances the rule ''volenti nan fit
injuria " would apply. Then as to the two next
counts, I think they may be conveniently taken
togetiier, viss., the claim to compel the defen-
dant to remove the fence, and to place it where
he originally contracted to place it. I think the
evidence is perfectly clear that at the time when
the fence was put up by the defendant it was on
the distinct understanding that the plaintiff
would come to terms with the owner of Carolus
Poort in regard to the portion of land which
the plaintiff was to get from Carolus Poort in
exchange for the portion which he gave for
Matjesfontein, aud I think both parties so
understood it. But in point of fact Matjesfon-
tein gave up nothing to the defendant. I think
we muBt take this arrangement to be conditional,
that the fence was only to become a permanent
fence in case the owners of Carolus Poort and
Bchlemmer's Hoek came to an agreement as to
the exchange of land. When it came to com-
munication with the owners of Carolus Poort it
was found that these owners refused to give up
as large a portion of land as that given up by
Schlemmer's Hoek. When the plaintiff found
ke could not get from Carolus Poort he said, we
must revert to our original agreement, and this
fence must be removed. I think tills is a posi-
tion he is entitled to take up. The fence was
placed upon his land, and the defendant must
have known it was there conditionally. He did
it at his -own risk, and when plaintiff demands
its removal the defendant is bound to remove
itw The original agreement was that there was
to be a straight line, the plaintiff
to fence one portion, the defendant the
other. I think the plaintiff is entitled to
an order upon the defendant to remove the fence
from his land, and to place it where he con-
tracted to place it. At the same time, as a
matter of equity I think it is only fair that this
judgment should be conditional on the plaintiff
paying to ihe defendant £i5, which will com-
pensate the defendant for any additional cost
incurred in the deviation. An order will there-
fore be granted for the defendant to remove the
fence from the line B C B D within one month to
the place originally agreed upon— the line C D
— upon condition that the plaintiff pay the de-
fendant £15, but failing compliance on the part
of the defendant with this order we must, of
course, give damages to the plaintiff, and the
Court will assess the damage at £90, with leave
to the plaintiff to use the materials which are
upon his land. Defendant to pay the coals.
[Plaintiff's Attorneys, Messrs. Van Zyl Se.
Buissinn^; Defendant's Att^rne)', Ous.Trollip.]
SUPREME COURT.
Before the Right Hon. Sir J. H. DH ViLL
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
IS THB MATTER OF TIW MINORS J 1897.
PARKER. I March 2nd.
Mr. Jones applied for authority for the leaae
for a lengthy period of certain landed property
belonging to the applicants, situate in the
dinsionof Wodehouse.
The Chief Justice said that the order would
issue on production of a telegram (the matter
being one of urgency) from ihe Resident
Magistrate that the transaction is for the benefit
of the applicants.
LKKFLKK V. HUDSON. | ^^^^^^
Agent— OommiRsion — Broker.
Whpi'f (t sale of iathfl is rofuplpt^'il
through the <i(fenry of a Itrokev who
hud been employed t>y tJte selhr as
agent to tiell the prope^i'ty^ the fact
that the ittt ending pitrchaser had^
before nu<^h snle^ atwerf^ihied from
others that the land trait fur nale^ does
not deprive such broker of hin rigid
to a commission.
This was an action brought to recover the
sum of £26 6s., due to plaintiff as commission
for services rendered as a broker in oonneotioii
with the sale of a house in Hope-street belong*
ing to the defendant.
The plaintiff's declaration alleged :
1. The parties to this suit reside in Cape
Town,
101
t Tlw plaintiff is a duly licenped broker
<inyijiK OB biisinef-B ia Cat e Towd ; the defcD-
dut IB a landed propri etor
3. Id or about the monlli of May, 1896, the ^
pluntiff was em|>lo^ed by the defendant as
Imker to pell on behalf --f the dt-fendant a
certain hoose, aituated in Hope-street, Cape
Tovn, then in the po«eeF8ion of the defendant,
i InUie event of the plaintiff finding a pur-
ehaaer for the eaid honse to the satUfaction of
tlif defendant, the defendant ngreed to pav t«
tlte plaintiff a oonimiesion of 2^ per cent, aa a
Tfvard for hie BerviceB as broker.
5. Thereafter in or al>out the month of Juno,
\!<%, the plaintiff acting as the agent of the
defendant aaaforef^aid obtained an offer from
one A. Hapbael for the E&ai<l house at the price
of £\,0».
(. Tbe plaintiff duly coniniunicated this offer \
to the defendant on or about the 29th June, i
1^6. and on or about the ^th June. 1896, the
defendant accepted the offer and Bold the Baid
property to the aaid Ra]>hael for the sum of i
£1.060 aaaforeeald and thereupon the plaintiff i
?aya he became entitled to his commipsion an I
aforepaid.
7. All things have happened all times elapsed
aoil all eonditioni l>een fulfilled to entitle the
plaintiff to claim from the defendant the sum
of £9Sfe. as commission for his services as afore-
said bat the defendant wrongfully and
unlawfallj refuses to pay the said sum of
'» or any portion thereof.
Wherefore plaintiff claimed.
Ca) Judgment in the Ruin of £2H As. as aforc'
(A> Alternative relief.
<tf^> Cobtfiof suit.
The defendant's plea was ah follows :
1. The «!cfendant admits paragraphs 1, 2, 3, 4,
'of the declaration.
?. A»- reganls paragraphs 5, (>, 7, the defendant
adtnitji that Oh or about Jane 30th, 18^6. he sold
the said house to the said Raphael for the said
sum of £i,(^ but he denies all other allega-
nations therein contained.
3L He specially denies that it was through the
agt^Dcy of the plaintiff that the said sale was
effected.
4. He says that the aaid sale was effected
through one Mrs. Meyer, who ^as the tenant of
the said hoife.
Therefore by reason of the premises he prays
that the plaintiff's claim may bedismifned with
The replication was sreneral.
On thepe pleadings issue was joined.
Mr. Graham appeared for the plaintiff.
Mr. Molteno for the defendant,
James Henry Leflfler, licensed broker. Cape
Town, said the defendant employed him as a
broker last May to sell the house in Hope-street
which was then occupied by Mri*. Myers. On
May 28 witnefs wrote to defendant, asking if
the property was for sale, and asking if defen-
dant would take £1,000 for it. Defendant
said he would allow the client of witness to
look at the property, but paid he would not
accept less than £t,b)0. Afterwards deft-ndant
said he would take £1,050 and allow witness 24
per cent, on the sale of the property. On
June 30 Mr. Raphael, of Plein-street, came
about the property, and on that day witnew
wrote to the defendant closing a s-nle at £1,050.
WitnefH received no reply and wrote again to
defendant on June 31. A day or two after-
wards defendant called at the oftice of
witness and said, " The property is pold to Mrs.
Myers." Witness then wrote demanding his
commission, but received no reply. Witness
afterwards found that Mr. Raphael had t-aken
possession of the property, and Mrs. Myers had
vacated it. Transfer was effected to Mr. Raphael
in October.
Cross-examined: Mr. Rai)hnel came to wit-
ncFS about the property.
C. M. Stevens, firat clerk to the Civil Com-
missioner of Cape Town, proved the register of
the sale of the property to Mr, Raphael in
October.
This close the plaintiff's case.
For the defence,
Benjamin D. Hudson, the defendant, said he
was the owner of the property in June, 1896.
Some time in May he was approached
by the i laintiff as to the sale of the property.
Nothing came of these negotiations. Mrs.
M3ers had been in occnpntion of the houHC, a.H
tennot, eight or niirc 5-ear.^. Witness offered the
house forsa'e to Mrs. Myers for £l,'r)0, on June
80. She told witness afterwards the house was
sold for that amount. Next day witness told
plaintiff the house wa-* sold to Mi-s. Myers.
Afterwards Mrs. Myers told him the q./j, was
Mr. Raphael Witness made Mrs. Myern a pre-
sent of £13.
Cross-examined : Witness made the present
shortly after the sale, and before receiving the
lawyer's letter. Witness received plaintiff's
letter on June .SO.
Alfred Raphael, mei*chant, Cape Town, said
he had known Mrs. Myer^i a long time. She
came to his house on June 27 and told witness
the house she lived in wa^ for sa'e for £l,f50.
and plaintiff had given her the refusai. Witness
said lie would be glad to bu}' it. Afterwards,
witness bought the proj^erty, and made Mrs.
Myers a present of ^ for the introduction.
102
¥7110688 went to Mr. Leffler jusl becaose he
happened to know him ; not because he knew
Leifier bad the Belling of the house, Witney
niight have asked plaintiff if the house wats for
sale and instructed plaintiff to write to close the
purchase.
By the Court : VVitoess went to plaintiff as a
broker.
Dinah Myers said she had been tenant of the
house for many years. Plaintiff gave her the
refusal to purchase at £1,060 about the first or
second week in June. After seeing Mr.
Raphael she told defendant she had a purchaser
for the house.
This closed the evidence.
After argument,
Judgment was given for the plaintiff, with
costs.
De Villiers. G.J. : It is admitted that the
plaintiff had been employed by the defendant
to sell the land, and that on the dCth June last.
the agency had not been determined. Accord-
ing to the declarations made by the defendant
as settler, and by Raphael as purchaser, the sale
was on that day effected by the former to the
latter. It was not directly effected and the
qceetion is through whose afcency was it done.
It was not done through the agency of Mrp.
Myers, the lessee of the property, for all she did
was to inform Raphael that the property was
for sale. It is true that she had the right of
preemption, but she never exercised that right
for I he property was transferred directly from
the defendant to Raphael. The person through
who re agency the sale was effected was the
plaintiff. It is true that it was by mere
accident that Raphael discoveied that the
plaintiff was ag«.nt for the sale, but after this
discovery the communications for the purchase
took place with the plaintiff as the defendant's
agent. The plaintiff is in my opinion enticled
to his commission and the judgment must
accordingly be for the plaintiff with costs.
[Paintiff's Attorney, J. Ayliff; Defendant's
Attorneys, Messrs. J. G. Berrange k Son.]
f 1897.
HBYDENBTCH V. KIRBY. < March 2nd.
(.Juoe 8th,
This was an action brought by Benjamin
Godlieb Heydenrjch against Brandon Kirbyfor
an account, payment of portion of profits under
certain contracts, delivery of tools, and interest,
Tlie plaintiff's declaration alleged :
1. The parties to this suit reside in Gape
Town.
2. Duiing the year 1814 the defendant, who is
A contractor, obtained frpm the Town Gouncil
of Gape Town certain contracts for work in
connection with the drainage of the city of
Gape Town.
3. Thereupon the defendant requested the
plaintiff to advance a sum of money to him to
enable the defendant to carry out his said ood-
tracts.
4. On or alout the 2nd July, 1891, an agree-
ment in writing, marked A, was entered into
between the plaintiff and defendant, which the
plaintiff annexes to this declaration and crairee
leave to refer thereto.
6. 1 hereafter the defendant obtained other
and further contracts from the Town Gouncil
and other persons in aduition to those referred
to in the agreement (A), and the plaintiff, mt
the request of the defendant, advanced the
defendant further sums of money to be ex-
pended upon the said contracts under the terms
and conditions in the said agreement (A).
6. Between the 22nd July, 1894, and February,
1896, the plaintiff has advanced to the defen-
dant the sum of £9.071 lis. 3d. under the said
agreement, and the plaiotiff has received from
the defendant the sum of £9,212 lOa. lOd.
7. It became and was the duty of the defen-
dant under the said agreement (A) to render
the plaintiff a full and true account, supported
by vouchers, of all moneys received and ex-
pended by him in connection with the said
contracts with the Town Gouncil and othent,
and of all profits made by him under the said
contracts ; and to pay over to the plaintiff one-
third of the profits as aforesaid, and to deliver
and hand over to the plaintiff all tools and
plant used in connection with works under the
said contracts.
8. The plaintiff further says that the defen-
dant is indebted to him in the sum of
£24 Os. lOd., being for interest on certain
moneys advanced to the defendant by the plain-
tiff at the special instance and request of the
defendant as will more clearly appear from the
account (marked B) annexed to this declara-
tion.
9. All things have happened, all timee
elapsed, and all conditions fulfilled to entitle
the plaintiff to claim from the defendant n
full and true account, supported by vouchers of
all moneys received and expended by him in
connection with the said contracts with the
Town Gouncil and others, and of all profita
made by him thereunder, and for payment of
one-third of the said piofits; delivery of the
tools and plant referred to in the said agree-
ment (A), or payment of their value, the sum of
£200; payment of the sum of £24 Ob. I'M.
referred to in the last preceding paiagraph of
this declaration; but the defepdanti ttiougU
103
nqviftcd so to dow ne^lecto and refoees to
nder the said account^ pi^T over the eaid pro-
fits, ddWer the said tools or tfaeir value and pay,
thenmoC il24 Ob. lOd. ms aforesaid
Whmfore the plaintlfE prays :
(<)That the defendant maj be ordered to
Ridfer to the plain tlif a full and true aooonnt,
■|i|nited by TouclierB, of all mon^s received
iBd expended by bim in oonnection with the
aidoontractB with ilie Town Council of Cape
Tova and others, and of all profits made by
hia under the ea\d oontracta.
(ft) That the defendant may be ordered to pay
him one-third of the aaid profits made under
the ta\d contracts.
(c) ¥or an order compelling the defendant to
d^ver to the plaintiff all tools and plant
referred to in agreeihent A or to pay him the
vahse thereof, the snm of £20(>.
id) ¥or iudgment in the sum of £24 Ob. lOd.
as aforesaid,
(r) Altemattre relief.
(/) Costs of suit.
The annexuie A referred to was as follows :
Memorandum of an agreemeut made,
entered into, and concluded between Brandon
Kliby and Benjamin Godlieb Heydenryoh.
And the said parties hereto declare : whereas
Srandon Kirby has tendered and obtained the
eonteact for ezcaratioos for main drainage in
Staal Plein, Avenue Terrace, BIyth-street, and
actoBB Government Gardens from the Town
<>oaiicil of the dty of Cape Town, and whereas
the amid Brandon Kirby is in need of funds for
the |.urpose of carrying out the above contract
aaad a|yplied to Benjamin Godlieb Heydenrych
for encfa funds not exceeding the sum of two
Imndred pounds sterling, and whereas the said
kmin Godlieb Heydenrjch has agreed to
such funds not exceeding two hundred
sterling upon condition: (a) That the
Brandon Kirby shall pay over to
ndd Benjamin Godlieb Heydenrych
i consideration for the eaid loan,
sthird (i) of the profits derived under
the said contract without holding the said
Benjamin Godlieb Heydenrych responsible for
any loesea. (b) That the said Brandon Kirby
shall at ooee hand over to the raid Benjamin
Godlieb Heydenrych, as security for the said
advanee, eadi and every one of the above
ce ntoatfts with the said Town Council, and also
gnat a power-of -attorney to receive all such
moneys as may become due and payable under
the aaid contracts by the said Town Council
as aforvsaid. (<?) That all tools, &c., used in
ike canyittg on and completing the said con-
trmd, shall remain the property of the iaid
J^^iaoiin Godlieb Heydenrych. Now there*
fore, these presents witnesaeth that the parties
hereto for themselves, their heirtt, executors,
administrators, and assigns have contracted, and
agreed as follows, to wit :
1. The said Benjamin Godlieb Heydenrych, in
consideration of the presents aforesaid, agrees to
advance such sum or sums of money as may be
required to pay the wages of the labourers
engaged on the above works weekly Irom time
to time during the first three weeks in each and
every month as the work proceeds, and also
such sums as may be required to purchase the
necessary tools which on the whole, during the
whole period on which Fuch contracts are to be
carried out^ shall not exceed the sum of two
hundred pounds.
2. That the said Brandon Kirby shall cede,
assign, transfer and hand over to the said
Benjamin Godlieb Heydenrych, each and every
one of the said contracts with the Town Council
of Cape Town, as security for the advances
aforesaid, and fuithermore grant his power*of-
attomey, irrevocable and in rernmum^ (o enable
the said Benjamin Godlieb Heydenrych to
recover such amounts as may be due in the
fourth week of each and every month, from the
payments received from the said Town Council,
on the fourth week of every month under the
said contracts. That the said Benjamin Godlieb
Heydienrych shall be allowed to deduct the sums
advanced during every three weeks in each
month, from the payments received from the
said Town Council on the fourth week of every
month under the power-of-attomey aforesaid.
That the baUnoe, after aforesaid deductiona
shall be kept by the said Benjamin Godlieb
Heydenrych, at the call of Brandon Kirby, for
division as aforementioned at the completion of
the said contract
That the said Brandon Kirby shall carry out
and complete the hereinbefore mentioned con-
tract with the said Town Council of the city of
Cape Town in two months.
lliat all tools, &a, employed on the works
under the aforementioned contract shall remain
the property of the said Benjamin Godlieb
Heydenrych.
The said Benjamin Godlieb Heydenrych shall
receive as remuneration and interest for the
herein aforenamed advances one>third (i) of
the profits under the said contracts with the
Town Council of the city of Cape Town.
Thus done and contracted at Cape Town this
second day of July, 1894.
(8gd.) Brandon Kibbt.
„ B. G. Hbtdenbtoh.
The following: was defendant's plea t
I. Defendant admits paragraphs 1, 2, 3. 4 and
6 of plaintiff's declaration.
104
2. As to paragraph 6, be begs to refer this
Honourable Court to such proofs and vouuhers
as the plaintifE may produce, as defendant,
owing to plaintiff's action, is not in a position to
test the correctness o£ tae statement therein
contained.
3. As to paragraph 7, defendant bogs leave to
refer to the agreement founded upon foi its
terms; he states that the plaintiff received the
price for the work performed under the contract
on his (defendant's) behalf, and that plaintiff
has at no time accounted for the money so
received, and he further states that without
such account, supported by vouchers, it is
impossible for him (defendant) to ascertain the
position between himself and plaintiff.
4. As to paragraph 8, defendant denies that
he owes the sum of £24 Os. lOd., or any portion
thereof as interest to the said plaintiff.
5. As to paragraph 9, defendant specially
denies that all things have happened, ail times
elapsed, and all conditions been lul tilled to
entitle the plaintiff to proceed in any action
against him. He states that the plaintiff has
broken his part of the agreement and has nut,
though requested so to do, rendered such
accounts and vouchers as he should have done
showing his dealings with the money received
and disbursed on plaintiff's behalf, and in the
absence of which it is impossible to determine
the relative positions of plaintiff and defendant,
or for him to frame any account.
He admits the other allegations in the para-
graph, save that ho denies that any prohtii have
been made; he admits that the plaintiff is
entitled to his tools, but says that until he has
completed his share of the contract by han ling
over accounts of his intromissions with moneys
received by him, or the payment of such balance
as may be found due on adjustment of accounts
plaintiff is not entitled thereto.
And defendant further says that he has
tendered delivery of such to^ls, and hereby
again tenders delivery of such tools; he
espeoifioally states that a true adjustment of
accounts would show a balance due by plaintiff
to defendant.
Wherefore defendant prays that the plaintiff's
claim may be dismissed with costs.
1. As a claim in reconvention, plaintiff in
reconvention (defendant in convention) begs
leave to refer to the matters pleaded above, and
also to the terms of the agreement annexed to
plaintiff's declaration and marked A ; he
states that defendant in reconvention, as was
his duty t:> do, has at no time, though often re-
quested so to do, furnished him with a true and
proper account supported by vouchers of the
moneys received from the Town Council of
Cape Town and expended by him in connection
with the Ha id contract with the raid Town
Council.
2. Debate of account so furnished.
3. The payment of . uch sum or sums of
money as may be found due to defendant in
convention after debate cf the said accounts,
and upon delivery of the tools now held l>y
plaintiff in convention.
4. Alternative relief.
5. Costs of suit.
For a replication to defendant's plea the
plaintiff says as follows :
1. He admits that be received certain i ay-
ments for work performed by the defendant in
terms of the agreement A annexed to the
declaration, and ^ays that he has given proper
receipts of such payments, and has at all times
been ready and willing to render an aocount,
showing all moneys advanced by him to defen-
dant. Otherwise the replication was general.
For a plea in reconvention plaintiff says :
1. He craves leave to refer to the matters
already referred to in his pleadings.
2. He says th*^t he has at all times been
ready and willing, as the defendant is well
aware, to furnish the defendant with the
aocount referred to in his claim in reconvention,
and to exhibit to him all vouchers in his posaeis-
sion, and the defendant through his duly-
authorised agent has inspected the said account
and made a copy thereof.
Otherwise the plea denied generally.
The rejoinder of the defendant in conventloa
was general.
The replication of the plaintiff in reoonven-
tion admitted that an aocount had been fur-
nished, but said that the same was incont»ci and
erroneous, and not such an account as he is by
law entitled to demand from plaintiff as tlie
holder of his power-of-attomey.
Otherwise the replication was general.
On these pleadings issue was joined.
Mr. Graham (with him Mr. Close) for the
plaintiff.
Mr. MacLachlan for the defendant.
For the plaintiff was called,
B. G. Heydenr^'ch, tinancial agent, CapeTowD,
said that he iirst knew defendant when he was
introduced to him by a broker. Defendant was
in want of money, and gave him letters of credit
for the purpose of buying water-borinif
machinery. Witness afterwrads adrancod
money to enable defendant to carry out a con*
tract for the Town Council. Witness used to
give the defendant a cheque for pay sheets every
week. Witness had no check on this pay-sheet
except for cartage. The same payments had
been brought up twice, and sometimes thrae
f
106
biML A eertam payment of ^16 17b. had
beabraoghtup tHree times ; and a payment
of £10 for an aocident ^ras pot down twice.
ThefOQchttB did not agree -vritli the iwy-sbeets.
^Hnen adTanoed. defendant altogether
fltOSl III. 3d. ^Witneea liad received from the
TcftiOonncil £9,242 lOa. lOd. during the two
ran Defendant canie to plaintiff *b place to go
tkmgh the Toacliers, bnt was so violent that
vitaea bad to call a policeman in to remove
Ua. Witneas advanced doee upon £300 for
took, and deiendant granted to return him
■boat £aD worth.
Croa»-«xaniined : ^TVitness invariably took
Tee^pfta for moneya paid out. Defendant some-
timei Itept the pay-abeete baok three or four
wedca. Bometimes there would be 4900 lying
at the Toim-hoaae. Defendant and his partner
barrowcd money previouB to the contract Wit-
BCM waa to get one-third of the profits, and
hia adraiioe waa not to exceed iK200. Witness
thought the contract was a risky one.
AX this point, at the suggestiou of the Oourf ,
it waa agreed that ^e whole matter of accounts
to an accountant for report. Mr.
was appointed by agreement to act as
tlieaoeoantant; theCourta- pointing him com-
Mtfaaioner for the purpose of administering oaths
in the inquiry.
(June 8th.)
l«ancaster reported in favour of defendant
on an the items in dispute.
After argument,
Chief Justice said : The plaintiff in this
greed with defendant to do what is
called the ** financing," to enable him to per-
farm certain contracts with the Town Council
of Cape Town. The agreement between plaintiff
and defendant was that plaintiff was to ad-
▼ance a sum not exceeding £20 \ and in con-
Btderation he was to receive one third
of the profit, and he (plaintiff) held a power of
attorney to receive all moneys ; all tools were
at the completion of the contract to become the
property of the plaintiff. It appears that the
way in whichbusiness was conducted was that
the plaintiff received every week from the
defendant a pay-sheet showing what was
required to ca<-Ty on the work. The defendant
paid the men according to the pay-eheet : and
the plmintitt received all the moneys due under
the eoDtnct, The plaintiff brought this action
klD eoart tor an account. But week after
week the plaintiff had an account ; and the
phinUS had all the moneys paid to him
dinetlr The plaintiff had the pay-sheets sup-
vBedtohim week after week, and it was easier
farbim than the other party to keep a fall and
SrecT I^unt. AS the plaintiff had the
r
handling of the money, it was his duty to
keep an account. The disputes as to the
accounts have been referred to an accountant,
and be has found that the contract did not result
in any profit. There was only one item
which gave me any doubt at first, and that was
the amount for the " up-keep " of the roads,
which amount must have been expended after
the contract was completed. It is Bhown, how-
ever, that the actual result of the contract was
that there was no profft. The further claim
was for the tools, which were io remain the
plaintiff's property under the contract. The de-
fendant tendered delivery of the tools, which
were put down as worth £33 18s. From the
plaintiff's own showing, he has a balance of
£181 Os. Sd. as regards the amounts received and
paid by him. This is not to be considered the
profit, because defendant has spent more than
this upon the up-keep of the roads. The de-
fendant has shown that there was not a profit.
The plaintiff must hand over this £181 Os. 3d.,
but he IB entitled to deduct from it £38 18b. as
the value af the tools. Judgment must be
entered for defendant on his claim
in reconvention for £147 2b. 8d« The
defendant, I thiDk, is clearly liable
to pay the costs up to the date of filing his plea.
As to the costs subsequent to that date, con-
sidering that the plaintiff has not succeeded in
getting any more than the tools, the plaintiff
must pay the costs. Defendant to pay all costs
up to the filing of the plea, and the plaintiff all
subsequent costs.
Plaintiff's Attorney, V. A. van der Byl ;
Defendant's Attorney, H. P. du Frees.]
QUESN V. FIELD.
f 1897.
I March 2ad,
Attorney-General — Remitting case for
trial — Preparatory examination —
Notice of charge — Summons — Sum-
mary prosecution.
Where after a preparatory examiiM'
Hon has been Uiheu^ the Attoi^ney-
General remits a case to a Magis-
trate's Court for trial ^ notice should
he given to the accused of the Jiature
of the churge to he made, but such
notice need not he by way of
»ummons in the form specified in
section 68 of Schedule B to Act 20
of 1856, which section applies only to
summary prosecutions.
106
This was an appeal against the decision of the
Resident Magistrate of Cape Town, by whom
the appellant was convicted of the crime of
theft by means of embezzlement in that he ap-
propriated a sum of £58, the property of the
members of the Independent Companion
Friendly Society, whilst acting as secretary of
the said society. The appellant was sentenced
to four months' imprii^onment with hard labour.
The prisoner was brought before the Kesident
Magistrate on a warrant of arrest for theft by
embezzlement, and a preliminary examination
waa held. The Resident M8fl:iBtrate committed
him for trial on a charge of theft by means of
embezzlement. The Attorney-Qeneral remitted
the case to the Resident Magrstrate under Act
43 of 1885, and the prisoner was brought before
the Resident Magistrate for tiial, and ar-
raigned under section 29 of Act 3 of 1861, and
pleaded not guilty. No summons was issued,
but after the remittal the messenger served on the
accused the following notice : ** You are hereby
required to appear at the Resident Magistrate's
Court in Burg-street, Cape Town, at ten o'clock
in the forenoon, on the dOth December, 1896, to
answer the charge of theft by means of em-
bezzlement, for which you were committed for
trial on the 9th December, 1896." The charge as
set forth In the charge sheet was that of theft
by means of embezzlement, in that having in
his possession money amounting to £63, the
property of the Independent Companion
Friendly Society, the said H. J. Field did on
divers dates between the Ist July, 1894, and
28th November, 1896, at Cape Town, wrongfully
and unlawfully convert the said money to his
own use and benefit, and did steal it. — Before
the Resident Magistrate the prisoner's agent
raised the exception that no copy of the
indictment had been served on the prisoner. ~
The Resident Magibtrate over-ruled the ex-
ception, found the prisoner guilty, and gave the
following reasons : I found there was no reason
for allowing the exception of prisoner's agent
that prisoner was not served with a copy of the
indictment. The notice served on prisoner sets
forth that he would be tried for theft by
embezzlement, for which he was committed for
trial on 9th December, 1896 ; and the charge to
which prisoner pleaded iB exactly the same as
the charge made against him at the preparatory
examination, and. moreover, the prisoner's
agent had a complete copy of the whole
of the Dreliminary examination taken
a considerable time before the trial. The pri-
soner was therefore not in any way prejudiced,
and had ample notice of the nature of the
oharge which would be preferred against him.
I found the prisoner guilty of the theft of £21
lOg., viz., rent received from Jacobs, from the
Perseverance Lodge, and from the Yry Zona
Lodge. For most of the items receipts are pro«
duced, the whole of which prisoner in his
evidence at the trial admits to have reoelved. I
consider his explanations as to what became of
the money most unsatisfactory.
The prisoner now appealed.
Mr. Buchanan for the appellant: This appeal
is brought on two grounds: (a) On the groand
that no summons was issued under section 68,
Schedule B, Act 20 of 1866. (h) On the merits.
The accuBed was merely served with notice to
appear. Section 68, Schedule B, Act 20 of 1866,
requires summons to be Ferved on accused. He
was thereafter arrested under a warrant, but at
BO time has summons beeti served. In s
Superior Court a copy of the indictment and
notice of trial must be served on the accused
even where he has full knowledge of the charge.
Much more then ought the accused to be
summoned in our Resident Magistrate's Conrt.
By Ordinance 8 of 1852 at the trial of the
accused the Resident Magistrate's clerk has to
read the charge from the summons, the warrant
is simply for the apprehension and contains no
charge — so that this part of the procedure
cannot be properly carried out unless there ia a
summons. It has been held in Regina v.
Meiring (1 Shell, 225), that a summons is not
necessary after a remittal^ but in that case it
was not argued that a summons need never
issue at all. The summons has the effect of the
notice and the indictment, and should set out
the charge in the fullest possible terms. The
notice which the accused received in this case
could not cure the defect if no summons were
issued originally. Act 3 of 1861 (section 29)
g^ves the procedure to be adopted when there la
a remittal. The summons ought to issue even
before a preparatory examination. For suppose
the Resident Magistrate gets the accused before
him and then exercises his option either to
make the matter a summary trial or preliminary
examination, if he proceeds with the latter then
it has been the practice not to have summons, a
happy e^ post facto way of curing the defect.
As to the merits, the evidence that would
support a conviction for theft by embezzlement
is such as would be required to convict for
embezzlement In English la«r, Stephens (Digest
of Criminal Law, section 312). The Resident
Magistrate has not drawn the distinction
between the prisoner's not keeping propir
accounts and converting money to the prisoner's
own use, he argues that because no proper books
were kept therefore there was conversion, the
accused rebutted conversion by his evidence.
107
Mr. sua, Ajpeistant L&w^ ^dTiser, for the
Gwtt: k% to the firet point taken, it is sub-
mitted that Kale 68 only applied to cases of
nrnmary prosecution and not to cases which
IttTeleen remitted by tlie Attorney-OeDeral.
SeeBfjifia t. Meiring i\ Shiel, 225.)
As to the merits there "were Bufficient evidence
to pistify the ooniriction. The receipts pat in
desrlj &how tt&at the appellant received moneys
iorwhiehbe did not account.
Vr. Buchanan in reply.
The Court dlBmiased the appeal.
BeViU\erB,C. J. : "Where, after a preparatory
examination, a case is remitted by the Attorney-
General to a Magistrate's Coui-t for trial, the
■ecQscd OQgbt to have notice of the nature of
the charge to lie made agiiinsfc bim at such trial.
The qaeetion is whether such notice should be
given bj way of summons in the form specified
in stection 68 of Schedule B to Act 20 of 1856. In
ay 0|»iaion, that section refers only to summary
ptoaecntions and not to cases remitted for trial
•fler preparatory examination. The notice given
ia the present ease was perhaps somewhat
^ms*^ but it was sufficient to indicate to the
pcaoner tb^ nature of the precise charge which
was af serwards made. As to the merits of the
CHe there was sofficient evidence to prove that
the prisoner received moneys from others, and
appropriated them to his own use, and was there-
Awe guilty of theft by means of embezslement.
Tbe appeal must be dismissed.
Tlwtr lordships concurred.
I AppellanVs Attorney, J. Ayliff.]
SUPREME COURT.
the Right Hon. Sir J. H. db Villiebs,
P.C K.C.M.a. (Chief Justice), Hon. Mr.
JuBtioe Buchanan, and Hon. Mr. Justice
Maasdokp.]
JAIUB aSAKIGHT AND GO. Y.
MABCHU88EN.
f 1897.
(Mar. 8rd.
8]dp — Charter party— Freight— Car-
rage of goods — Norwegian law —
Distance freight.
By a charier party, in an ordinary
EnglUh printed fonn^ made iji Lou-
doH h^Uoeen the London broker of
ike defendant, a Norwegian skip-
owner^ and an Englith Trading
Company it fms oyreed that the
defendanVa ship At I a a of Norway,
shmdd proceed to Rangoon and there
load a cargo of teak and from there
proceed to Queenstotcn or Falmouth
for ordrrHj the freight to be paid " by
one third in raah on nJiip^s arrival at
port of discharge, and the remainder
on unloading atul right delirery of
cargo in canh"
The nhip duly proceed ed to Hanginm
ami there loaded a cargo of teak but
in the course of her voyage from
Rangoon nrtu tvrecked on the shores
of Table Bay, and became totally
lost. The greater part of the cargo
having been salved, the plaintiffs ait
holders of bills of lading for the
cargo were rrdUng that the master
should tranship the cargo to its des-
tination, but the master refused eit/ier
to tranship the cargo or to deliver it
to the plaintiffs, irithout payment of
distance freight according to Norwe-
gian law.
Held that the plaintiff mis not liable
Jar distance freight as the intention of
the jxtrfies was to make an English
contract and, the payment affreight
being expressly dealt with in the
charterparty, none teas payable on
the cargo latided in Cape Tmon,
This was an action for delivery of cargo free
of freight, and for an order declaring theownera
of the wrecked ship Atlas are not entitled to
such freight
The plaintiffs in this case were Thomas Bell
and John Alexander Stuart Watson, carrying
on business in Cape Town under the style or
firm of James Searight & Co. ; and the defen-
dant was Jens L. March^ssen, master of the
wrecked ship Atlas, and representing theownera
of the said ship, at present in Cape Town.
The plaintiffs' declaration alleged :
1. The plaintiffs are merchants carrying on
business at Cape Town in partner^p, under the
style or firm of James Searight & Co. The de-
fendant is the master of the wrecked ship Atlas
and he represents the owners of that vessel.
2. In or about the month of February, 1896,
the Atlae, teing a Norwegian vessel, was lying
in Uie Thames, and in the said month she waft
duly chartered under a charter party, executed
108
ill London by Mesers. H. Clarkeon & Co., acting
as agents for the owner, one Thomas 8. Flack,
of the one part, and the Bombay-Burmah Trad-
ing Corporation (Limited), through their agents*
Messrs. Wallace Bros., of London, of the other
part.
3. In terms of the said charter party it was
provided : (a) That the said ship should proceed
to load at Bangooa or Moulmein a full cargo of
teak, and so loaded should sail to Queenstown
or Falmouth for orders, whence she should pro-
ceed for the discharge of cargo to any one or two
of certain specified ports, some of the said ports
being in England and some on the Continent ;
(6) that freight being payable in Britbh ster-
ling upon the basis of certain scheduled rates
set forth in the said charter party should be paid,
if in the United Kingdom, by one-third in cash
on ship's arrival at port of discharge, and the
remainder on unloading and right delivery of
the cargo in cash, less certain discount ; and if
on the Continent, in cash on unloading and right
delivery of the cargo at tlie exchange of the
day, less a certain discount ; (c) that the master
should sign bills of lading for the whole or any
portion of the cargo at the request of the char-
terers ; and that upon bills of lading being so
signed all liability on the part of the charterers
or their agents under the charter party or other-
wise should cease ; (d) that in tbe event of any
quefetion of general average arising the same
should be settled according to the practice of
Lloyds ; and that all questions should be settled
in accordance with English law.
It is unnecessary to set out the other pro-
visions of the said charter party in this decla-
ration, but the plaintiffs ask leave to refer this
Honourable Court to the said document when
produced.
4. The said ship duly proceeded to Rangoon,
and loaded a full cargo of teak shipped by the
charterers and the said Bombay-Burmah Trading
Corporation (Limited), for which the defendant
as master duly signed bills of lading to the order
of the shippers or their assigns, freight and all
other conditions being stipulated to be as per
charter party.
6. In the course of her voyage from Bangoon
the said ship was wrecked on the shores of Table
Bay, and became and was totally lost, and was
abandoned as such.
6. By far the greater part of the cargo was
taken out of the wrecked ship and salved, and
the said salved cargo is now lying in the Cape
Town Docks under the control of the defendant ;
its value is the sum of £14,i00 or thereabouts.
7. The plaintUSs are holders of bills of lading
for all the said cargo, endorsed in blank by the
the said Bombay-Burmah Trading Corporation
( Limited). They hold the said bills on behalf of
the owners of the said cargo, and as such holders
they are entitled in all respects to deal with the
said cargo while here as the owners thereof.
8. The defendant is bound in law either to
ship the said cargo in some other vessel for the
purposes of being carried to its destination, or to
abandon his voyage and deliver the salved cargo
to the owners thereof without payment on their
part of any freight in respect of it.
9. The defendant has notified to the plain-
tiffs that he will not forward the salved cargo
to its destination, though the plaintiffs were
willing that he should do so ; and the plaintiffs
contend that the defendant is bound under such
circumstances to deliver the said cargo to them
to be dealt with as may be advisable, free from
any claim or liability for freight.
10. The defendant wrongfully contends that he
is entitled to be paid distance freight by the
plaintiffs in respect of the salved cargo still
under his control ; and he refuses to deliver up
the said cargo or to part with the custody of It
until such distance freight has been paid.
The plaintiffs claim : (tf ) An order declaring
the defendant is not entitled to be paid distance
freight or any freight at all in respect of the
said cargo salved as aforesaid ; (b) an order
compelling him to deliver to the plaintiffs the
said cargo under his control, free from the pay-
ment of any freight ; (c) alternative relief ; (d)
costs of BUitb
The defendant's plea was as follows :
1. He admits the allegations in paragraphs 1,
2, 4, 5, 6, 7, and 10, but denies that in paragraph
8. As to paragraph 3, he craves leave to refer to
the charter party itself for the terms thereof.
2. The said ship Atlas is a Norwegian ship,
sailing under the flag of Norway, and owned by
one Thomas Falk, a Norwegian subject, residing
at Stavanger, in Norway, at the date at which
the charter party was entered into ; and the
law of Norway which governs the question of
freight to be paid to the owner, gives
by express terms to the master the
right to claim pro rata freight in case
of loss of the vessel during the voyage. The de-
fendant craves leave to refer to section 160 of
the Maritime Law of Norway of July 20. 1893,
which is still of full legal force and effect, a
translation of which is as follows : " Section 160.
—If the ship is lost during the voyage or con-
demned as unfit for repair, the contract of
affreightment shall become void, but it shall be
incumbent on the master to adopt appropriate
measures, on behalf of the owners, in respect of
the goods in the manner prescribed by the rules
of section 67." In such a case the freight shall
be payable to the master pro rataitinerU^ cal-
r
109
enlated aooordiDK to the proportion of the dis-
tance sailed to the whole voyage, but with
•Ilowanoe for the time "oooapied by the voyage
and the difficulties and expenses connected
therewith, as compared with the remaining part
of the voyage. If the parties disacrree as to the
freight payable, it shall be lawful for any of
them to hare the amount fixed by a lawful
estimate." '* The owner shall have the option of
renouncing the goods in lieu of payment of the
fn rata freif^ht should he desire to do so."
3. The defendant is and has always been
ready to hand over to the .plaintiffs the said
caigo upon payment of his^rc; T<Kta or distance
freight in respect of the portion of the voyage
sctoally completed, and if the amount payable
as such cannot be agreed upon the defendant is
and has always been ready and willing that the
same should be fixed by a lawful estimate as
provided for in tne said section 160 ; but the
plaintiib claim the said cargo should be de-
livered to them without payment of any distance
freight at alL
i. As to paragraph 9, he admits that he has not
notified to the platntiif that he would not for-
ward the said cargo to its destination, atd says
he was not bonnd to do so, but he says he was
willing to forward the said cargo if the plaintiffs
were willing to pay the expense of so doing, and
to acknowledge his claim to the said yi'o rata or
distance freight^ but the plaintiffs have not
eonsented to pay the said expense, and have re-
fused to acknowledge the said claim.
6. He admits the allegations in paragraoh 10,
save that the contention therein set forth is
wrongful, and he submits that the same is not
justified in law.
Wherefore he prays that the plaintiffs' claim
may he dismissed with costs.
The plaintiffs* replication was general.
On these pleadings issue was joined.
Mr. Innes, Q.C. (with him Mr. Benjamin),
for the plaintiffs.
Mr. Searle, Q.C. (with him Mr, Macgregor),
for the defendant.
For tiie plaintifb were called :
John Alexander Stewart Watson, a member
of the plaintiff firm. It was common cause
in the case that the barque Atlas was chartered
by the Bombay and Burmati Trading Company.
Hie bills of lading put in had been in the plain-
tiffs' possession. On the 9th October the Atlas
went ashore on the Blaanwberg beach, driven
there by a heavy sonth-easter. With small ex-
ceptionB, the cargo was salved, though it was
slightly damaged. The cargo was insured for
M<^000. He would say about £14,000 was the
vahu of the salved cargo. Witness's firm had
paid MeKenaie d&7,000 for salvage. The
cargo was now lying under the captain's
control at the Cape Town Docks. In this
matter plaintiffs acted for all concerned. Wit-
ness had spoken to the captain on the question
of the distance freight, witness taking up the
position that it was not payable. The captain
declined to give up the cargo unless plaintiffs
were prepared to agree to pay distance freight.
The captain was not willing to transship the
cargo to the port of destination. The plaintiffs
had general authority to act for the owners of
the ship.
Cross-examined : About 1,100 logs had been
sold. The whole cargo consisted of 1,686 logs.
Practically the whole cargo was landed on
January 15. He did not know that they would
have offered to pay distance freight had the
captain said he would transship the cargo and
take it to the port of destination.
By the Couit.* The position plaintifi^ took up
was that distance freight was not payable until
delivery of cargo at port of destination, or if
the owners saw they could sell the cargo at a
good profit they might accept delivery and pay
distance freight.
This closed the plaintiffs' case.
For the defence,
Jens L. Marchiissen, the defendant, and
captain of the barque Atlas, ¥rrecked in October
last. Witness was a Norwegian subject. The
ship was a Norwegian ship, and flew the Nor-
wegian flag. After the ship was wrecked Messrs.
Searight & Co. were appointed agents. Witness
was willing to have the cargo forwarded to
England if the distance freight were paid.
Witness had no means at his disposal of sending
the cargo on. Witness even had to borrow from
the agents for ordinary expenses. Witness was
a captain in 1867, and had had steamboats for
thiee years or three years and a half. Most of
the charter parties were English, and under
English law.
Frederick Ayers, secretary of the Colonial
Insurance Company, Cape Town, said he was
an average adjuster— the only one in Cape
Town. "Practice at Lloyds" meant custom
adopted where no law prevails. Witness could
put in Lloyd's rules. There was difference
between the English law and other laws as to
the adjustment of general average. Lloyds was
not law at all.
This closed the evidence.
Mr. Innes for the plaintiff: There are two
questions at issue in this case :
(a) What are the powers and duties of the
Master in case of emergency ? What power has
he not founded on contract but on necessity in
view of his having to represent all parties ?
110
ib) What are the powers and duties arieiDg
out of the contract of affreightment ? Is the
n)att<*r to he settled hy English law or by the
law of the flag ? We contend that the English
law applies.
The whole question is one of intention. The
rule of the applioability of the Uw of the flag
is based on the case of The AhguH (L.R., Prob.
Diyisio?:, 1 891 , page 829). See the case of Tkom-
ta/i, Watson 4' Co. v. Wieting and Oth^trs (the
Formiea2 Juta, 197); The6faetanoeMaria(7 Prob.
Div., 137) ; Dicey i^Conflict of Law, rale 54 and
page 640) ; Chartered Bank v. Netherlands Co,
(IOQ.B.D.,629); Thelndmtrie (Prob.Dlv., 1894,
page 58). Every fact in the latter case is in our
favour, every one point that induced L rd Esher
—to consider the contract a English nut a Ger-
man contract, is present in this contract : and
besides, there is here an additional one, stronger
in our favour, vis., the special clause in this
contract adopting the rule of Lloyds and Eng-
lish law to settle all questions. Is distance
freight payable ? See Mavde and PoUoch (Mer-
chant Shipping, Vol. I., p. 367) ; The JSahia
(Browning Sc Lus^ington, Ad. Rep., page 392)
shows what is the Master's position in cases of
this kind. Common law only allows distance
freight to be claimed when it can infer a con-
tract to substitute the new intermediate part for
the old : and to release the owner ef the ship
from carrying the cargo further. Is there any-
thing in the facts to show that there has been a
new c(«ntract between the parties to accept the
cargo here I It is clear from beginning to
end of the correspondencj that Searight A Co.
deny liability for distance freight.
The Master having refused to make any
election as to what to do. Searight made no
attempt to sell before the 16th. The real ques-
tion is, does the law of England or of the flag
govern ? We contend for the former, and that
what our declaration claims is correct. See
Xackie, Jhinn 4' Co. v. Keith c$- Co. C*The
Avanti Savoia," 9 Juta, 442).
Mr. Searle for the defendants referred to
lAoydy. Gitihej'tilj.U., 1 Q.B., 116). The point in
that case was whether tnere could be an abandon-
ment of the ship by the shipowner, the present
is not a case of dealing with the power of the
Master in case of neoeesity. See also SeiUan's
Selected Cases on Private Ifiternationml Law
(pages 254 and 255) ; The MissouH (42 Ch. Div.,
321); The August (L.R. (1891) P.D., 329). The
particular clause in the present charter party
provides that English law and the practice of
Lloyd's shall apply only in cases v^f general
average. Lowndes (Law of General Average,
page 88) treats of the different laws of general
average! see also Carver (Carriage by Sea,
section 207. General average has to be settlea
at the place vthere the voyage is terminated,
whether in due course or not, hence to avert
this and apply Lloyd's aod English law they
had to agree specially as they have done. We
contend that the law of the flag must govern.
It lies on plaintiff's going on the principle that
the law of England applies, to show that there
is something exceptional or out of the way in
the Norwegian charter party ; there is nothinif
in our charter party necessarily and exclusively
English except the proviso as to '^Queen^e
enemies." Russell v. yiernan (17 C.B. (N.S.).
p. 163); Scrnitofi {CharttT Parties and Bills of
Lading), at page 12 collating all the previous
cases on the point, holds that the law of the
flag governs save where there is no cxpresa
intention to exclude, which cannot be shown to
exist here.
Mr. Innes in reply : The authorities on dis-
tance freight go beyond mere waiver and
required a new contract by voluntary acceptance.
Scititton (page 256); Metcalfe v. Jtritanniu
Ironworks Co. (2 Q.B.D., 423), and particularly
Lord Bramwell's judgment; Dakln v. Oxley
(J5 C.B., N.S., 646); Vlierhcom v. Cha/m^H
( 3 M, & W., 230), quite apart from our Act 8 of
1879, the Court would apply English law.
De VillieiTS, C. J. : The first question to be
determined is whether the English or the Norwe •
gian law should be applied to the oonstraction
of *he terms of the charter party relating to the
payment of freight. One third of the freiKht
was made payable on the ship's arrival at the
port of discharge, vis. Queen's Town or Falmouth,
and the remainder on unloading and ri^ht
delivery of cargo. The Atlas, a Norwegian
ship, was wrecked on the shores of Table Bay
and the greater part of the cargo, which oon-
sisted of teak, was salved. The plaintiffs, as
holders of the bills of lading, inquired from the
Master whether he would tranship the cargo and
convey it to the port of discharge, but the
Master refused either to tranship the cai^o
or to deliver the cargo to the plaintiffs without
payment of the freight from Rangoon, where
the cargo was shipped, to Table Bay. An
arrangement was afterwards made under
which the cargo was dehvered to the plain*
tiffs and the distance freight secured subject
to the deoittion of the Court whether saich
freight was payable or not. It is dear that
if the English law is to govern the oon-
straction of the charter party distance freight
would not be payable. The rules laid down hy
Lord BUenborough in 1808, in Hunter v. Ptintep
(10 East, 394) still appear to hold good in
England. "If," said he, "the ship be disabled
from completing her voyage, the shipowner may
Ill
/
^cDtiUehimsell to Uie wHole freight by for.
'^'^ the gooda \>y «ome otlier metns to the
plMc of desUiiAtioift ; l>«it lie lias do right to
uyfreiichtU t\ftey l>e no^ bo forwarded; unleBS
^ tonnrding tbe-n t>e dirpeiised with, or
men thfre Y>e aome ixewr baz^ain npoo this
nhjeet If \\ia aliipowner will not forward
ten, the fre^Kliter la entitled to them without
ptyiiKS any thing.*'* Tbe defendant however
cotttenda thai inasfniicH as his ship is a
Nerwepan ahlp, tbe l^orwegian law should
SOfern the oon»truction of the terinH of the
charter party relating to f reigrht. Under that
hkw I take it the ahipowner would be entitled to
dntaace freight under circnmBtaDceB like the
preNfat, eTen althoufcb tbe charter party
Btipnlatea for payment of freight on right
deHTery of the oargo at tbe port of destination,
^ai aUhcmgh the ahip was Norwegian, the
charter party was made in England, with
Sa^lilimeTchantaand every stipulation in it is
aa ordinary sUpnlation la an English charter
party. Aooording to the judgment of the EngliBh
Coort of Appeal in TAe Indvgtrie (P.D. 1894,
p. 58), the inference to be drawn from these
facia ia that the contracting parties meant that
the eontract was to be construed according to
Eogliah law. That decision may fairly be
taken to embody **the law administered by the
Hi^h Coort of Justice in l^ngland" in terms of
Act Xo. 8 of 1879 regariiing the question at
Mne. The jadgment of the Court must there-
fore be for the plaintiffs with costs.
Mr. Joatice Bnchanan : I concur. There is
aoly o«M point I wonld refer to that has not been
dealt with by the Chief Justice. I have carefully
examioed the evidence to see if it contd be held
that there had been any waiver implied, or con-
«tractiTe, or a new agreement entered into
betvreen the parties to iiiake delivery here, upon
wfaSeh a liability to pay ireight could be based ;
hat I am unable to discover in the evidence any
foandation for such a finding. There seems to
me therefore no gronnd upon which the defen-
dant eao be held entitled to recover any portion
of his claim.
Mr. Jnstioe tfaaadorp concurred.
LPIaiotJiF's Attorney, Mefsrs. Van Zyl &
Baifliiao^; Defendants' Attorneyi', Meflsr^i.
FairMdlge, Arrleme 4c Lawton.]
SUPR
COURT.
[Before the Right Hon. Sir J. H. DB Yillisbs,
P.C., K.C.M.Q. (Chief Justice), Hon. Mr.
JttsticA Buchanan, and Hon. Mr. Justice
Maabdobp.]
I
HETDBNBTCH V. ABAS AND j 1897.
8ATEA. ) March 4th.
This was an action brought by Benjamin
Godlieb Heydenrych against Hadje Abas and
Hadje Satea to recover the sum of £53 as rent
of certain cabs and horses belonging to the
plaintiff; also for an order for restoration
of certain cab, hoises, and harness.
The plaintiff's declaration alleged :
1. The plaintiff resides at Cape Town and the
defendants, who are married to each other by
Malay rites, also reside at Cape Town.
2. The plaintiff is entitled to the posBcssion of
a certain cab, No. 7, known as the QrantuUy
Castle, and of three horses, to wit, one grey
horse named Charlie, one black horse named
Blaokstone, and one bay horse named Charlie,
together with two sets of harness (one black and
one brown, leather plated), which plaintiff let
to the defendants, and the defendants took to
K asc upon the terms mentioned and referred to
in a certain agreement dated 16th October,
1895, to which agreement the plaintiff crave s
leave to refer, and have taken and held as
herein inserted.
3. The said agreement was signed by Hadje
Abas, the male iefendant, for himself, and by the
said Hadje Abas as and In the capacity of agent
for the defendant Hadje Satea, and the said
Hadje Satea em I loyed and authorised the said
Abas so to sign and contract on her behalf.
4. By the said agreement it « as stipulated and
agreed that the lease should be for a period
beginning Ist November, 1895, and ending 81 st
January, 189 >, and that the defendants should
pay to t^ie plaintiff the sum of £1 per month as
and for rent. The said sum was payable at the
end of every month.
5. The said agreement was further expressed to
be subject to the conditions set forth in certain
previous agreements between the same parties,
bearing date respectively 2nd June, 1894—
which agreement was renewed by one bearing
date 81st December, 894 -and 31st December,
1894. Under the said agreements of 2nd June,
1894, and 31st December, 1894, it was provided
and agreed that should the lessees fail duly and
punctually to pay the rent as aforesaid, it
should be at the option of the lessor to cancel
the said lease forthwith and take possession of
112
the articles therein Tnentioned. The remainitig
portions of the said agreements are not material
to this case, and need not here be ret out.
6. The agr.. ement of 16th October, 1896, in para-
graph 2 mentioned, was tacitly and by mutual
consent extended from month to month, and
was terminated by a notice in writing bearing
date lOth December. 1896, aad sent on that date
by plaintiff to the defendants, wherein the
plaintiff intimated that the lease would be ter-
minated upon the expiry of one month from the
date of such notice.
7. The sum of it3, and no more, has been paid
by the defendants to the plaintiff as and for
rent for the period, and nnder the aarreement in
paragraph 6 mentioned. There is still owiog
by the defendants to the plaintiff by reason of
the premises the sum of £63.
8. All things have happened, all conditions
been fulfilled, and all things elapsed to entitle
the plaintiff to the possession of the articles in
paragraph 2 set forth, and to be paid the said
sum of £68, yet the defendants refuse to pay any
part of the said sum, or to restore the said
articles.
The plaintiff claims (a) payment of the sum
of £53 by the defendants, or by one or other of
them ; (b) that this Honourable Court do order
that the defendants, or one or other of them,
do restore to the plaintiff the cab, horses, and
harness in paragraph 2 of the declaration men-
tioned, or in default thereof do pay the sum of
£76 as and for damages ; (c) alternative relief
and costs of suit.
Memorandum of an agreement for the re-
newal of certain two leases, dated 2nd June.
1894, and 81st December, 1894, respectively, and
renewal of the former, date 1 81st December,
1894 : We, the undersigned, Benjamin Godlieb
Heydenrych (lessor) and Hadje Abas and his
wife, Hodje Batea (lessees), to the abovemen-
tioned leases and renewals for the letting and
hire of certain cab, Na 7, called Qrantully
Castle, certain grey horse called Charlie,
certain black horse called Black»tone, certain
bay horse called Charlie, and two sets of harness
(one black and one yellow, leather plated), do
hereby agree to extend the said lease for a
period of three months, commencing on the 1st
day of November, 1896, and ending on the 8 1st
January, 1896, under all the conditions and
stipulations therein contained, at a monthly
rental of £4 sterling per month, payable at (he
end of each and every month, and that the
lessees shall have the option to purchase the
said cab horses, and harness at the expiration
of this extension, provided they have faithfully
performed and carried out the conditions and
stipulations above referred to, and punctually
paid the monthly rent when due, for the sum of
thirty-four pounds twelve shillings and three-
pence sterling (£84 12s. 8d.).
The plea of the defendant Abas was as
follows :
1. Defendant admits the allegations in para-
graph 1 of plaintiff's declaration, save that he
denies that he is married to the second-named
defendant, Hadje Satea.
2. As to parasrraph 2 of the declaration de-
fendant denies that plaintiff is entitled to the
possession of the cab, horses, and harness, or
that defendant took the said cab, horses, and
harness on lease as therein stated.
3. With regard to the document purporting to
be an agreement of lea^e, referred to in para-
graphs 2 and 8 of the declaration, defendant says
that he was fraudulently induced by plaintiff to
sign the said document for himself and on
behalf of the second-named defendant, Hadje
Satea, from whom he had no authority, express
or implied, to do so.
4. Defendant says specially that on the 2nd
June, 1894, he, together with the said Hadje
Satea, purchased from the plaintiff the a^
two of the horses, and one of the sets of harness
referred to in paragraph 2 of the declaration for
£42, which sum has been duly paid to plaintiff.
Subsequently on the I6th October, 1894, defen-
dant purchased the remaining horse and set of
harness referred to in the second paragraph for
£22, which said »um has not yet been paid, but
which defendant now tenders with taxed coats
to date.
6. As to tlie allegations contained in para-
graphs 4 and 6 of the declara'ion defendant
craves leave to refer to the document in the
declaration mentioned.
6. Defendant denies the allegations contained
in paragraphs 6, 7, and 8 of the declaration,
save in so far as admitted in paragraph 4
hereof.
Wherefore, subject to the aforesaid tender,
defendant prays that plaintiff *s claim may be
dismissed with costs.
The plea of the defendant Satea was as
follows :
1. Defendant admits the allegations in para-
graph 1 of plaintiff's declaration, save that she
denies that she is married to the first-named
defendant, Hadje Abas.
2. Defendant denies the allegations in the
second paragraph of the ueclaration contained.
8. As to the third paragraph of the declara-
tion, defendant says that she has no knowledge
of the agreement therein referred to, that she
was no party to it, and she denies that Hadje
Abas acted with regard to it m her agent, or
113
tkit lie was in any way employ eel and authorised
brbertooonkaet or sign tlie a§preement on her
bdiilt
1 Defendant says that slie has no knowledge
of die ellegatiosiB contained in paragraphs 4, 6,
6 cf pUdntlS'a declaration, and aays thai for
tbensBoiMi set forth in paragraph 3 hereof the
aid aQegationa set forth no cause of action
•luiistber. She denies that the agreement
vie by her express or tacit consent extended
fraa month to month, as in i»aragraph 6
■Ikged.
&. She dealea that she owes, has ever owed, or
bee paid any mcfney to plaintiff as and for rent,
Vf Tiitneot Ihe agreement of the 16th October,
l^ mentioned in the seventh paragraph, all
thealkf^iiona in which ahe denies.
6b She denies the allegations In paragraph 8
of Hbe dedsraiion contained.
Wiierefore defendant prays that plaintiff's
diim may be ^Bsmissed with costs.
The replication was general. On these plead-
iags inme was joined.
Mr. McGrevor for the plaintiff, and Mr.
Baeiisaan for defendant.
For the plaintiff were called :
B. O. Heydeniych. of Cape Town,
who said that on the 2nd June,
l^i, be came to an agreement with de-
fendants, and they came to an agreement on
SIst December, 1894. On the 15th October, 1896,
another agreement was entered into as to the
of the cab and two horses. The agree-
were thoroughly understood by the
The defendants said they were
according to the Malay rights. Defend-
ants had property in both their names, and they
gmve him a power to receive the rents of it as
»ecurii> for the rent of the cab and horses.
On December 10. 1896. witness demanded pay-
ment <kf the rent in arrear and a return of the
eab and horses. The demand was not complied
with, and he had not seen the goods since. The
cab and horses and harness were worth £57 ICs.
Cro^s-examlned : At first witness had no idea
ttf Felling the cab and horses, merely renting
them to the defendants. Defendants had not
had transfer of the houses put in as sAcurity.
H. F. Hendrikz, broker and agent. Cape Town,
taid be infaxxiuced the defendants to the
plalntilt The male defendant said he wanted
■emeone to bay a cab and horses for him.
Plaintiir agreed to bny the horses, cab, and
and Jet it to defendants under certain
Di. The agreement of June 2, 1894,
read to defendante by witness. They per-
fectfy onderBtood it, and both defendants signed
it
Cross-examined : The agreement was read
over in English. The female defendant read it
over to her reputed huftbaod, who seemed to
understand it.
Mr. G. Combrinck, conveyaocer and clerk
with Messi-s. Sauer Sc Standen, said the agree-
ments of December 31, 1894, and October 15,
1895, were signed by the male defendant in his
presence. He said he understood the contents
of the agreements he was signing. Witnees ex
plained the agreement of October 15. 1895, to
the defendant in the Dutch language.
Cross-examined : WitneBs was the nephew of
plaintiif, and lived in the same house.
This closed the plaintiifV case
For the defence,
Hadji Satea, the female plaintiff, said her
husband and hersell made contracts together.
She knew nothing of the document of December
81, 1894. She signed the agreement (tf June.
1894. Her husband said he knew of a cab for
sale for £^0, and he would go to HondrikK and
try and get money to buy it. Mr. Hendrikz
knew they had a house. He introduced them to
Heydenrych, who bought the cab for £30 and
sold it to them at £.0 interent, to be paid,
principal and interest, in six n ouths at £( a
month. Witness did not understand that on
non-payment of rent the agreement was to be
cancelled. Ihey paid £1 a month for six
months. Her husband sold the cali and two
horses for £30. Defendant had paici all that
was owing on the llivt agreement.
Cross-examined : Witness underptood Knglinh
fairly well, but did not know high Englihh
words. She understood the agreement was for
sale not for hire. Witness knew nothing of the
agreement of Deceuiber 31, ISIU"). Abas never
told witness he had got a third horse.
Hadje Abas, the male defendant, said he could
not read nor write. He knew very little
English. He remembered signim; the agree-
ment of Itit October, 1896. Plaintiif told witness
that now he (defendant) was going to Johan-
nesburg that was an agreement to pay the
remainder of the money for rent and the £22
for purchase. He understood the agreement of
June, 1894, was for sale at £40 with £2 for the
document, that was £4 a month for six months
and £18 and the cab would be their's. They
paid the £4 a month but had not the i:18. Then
the agreement of December 31, 1894, was signed.
Witness asked for a week's time, but plaintiif
would not give this. The agreement was not
explained to him, and he did not understand
that if he did not pay the amounts the
cab was to go back. Plaintiff did not give him
receipts for interest. He thought he owed
nothing for the cab and two horses. As soon as
i
114
witnefls was told it was a matter of hiring he
went straight to plaintifE, who told him that if
he paid the £18 the oab was his.
After part argument by Mr. Buchanan :
Judgment was given by consent for £34 J 28., :-kl.
with interest at 6 per cent, from the Ist January
last, and £9 for rent and costs.
SUPREME COURT.
[Before the Bight Hon. Hir J. H. de Villibbs,
P.O.. K.G.M.O. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdorp.J
BASKBB Y. BA&KBR.
/ 1897.
\ March 6th.
Separation deed — Husband and wife —
Custody of children — ^Maintenance.
By a deed of Bejxiraiion bettreen hus-
bfind and wife, it wan agreed that
the latter altould hare the custody of
the female children of the marriage,
and receive a monthly alloieancefoi'
tkeir maintenance. It tons further
agreed that the furniture in the hfMse
heretofore occupied by them should
belong to the u'ife, and that the hus-
band should be entitled to resume the
custody of the children in ease they
should not be 2>roperly taken care of
The irife irrnt to reside in Johannes-
burg icith her children without the
husbaiul's consent.
Held, in an action brought by the
irife, that she was not entitled to reco-
ver maintenance for the period of her
absence from the Colony,
This was an appeal from a decision of the
Assistant Beeident Magistrate, Cape Town, in
an action in which the plaintiif (the present
respondent) sued her husband for the payment
of maintenance for one month in terms of a
deed of separation, entered into between the
parties, under which the respondent was to
allow to appellant the furniture in the house
and a sum of MS per month, and to alUw her
the custody of the girl childien of the marriage,
he himself to keep the bojs ; the deed further
gave the husband power to reclaim the custody
of the girls on failure by the wife to maintain
and educate the children properly.
From the evidence before the Besident
Magistrate it appeared that the wife without
the consent of the husband removed from the
Colony to Johannesburg, taking the children
with her, and the husband st-ated he was unable
to go tb see them there.
At the trial defendant's agent objected to
plaintiff's agent appearing under the power put
in on the ground that the document purported
to be signed at Cape Town at a date when the
pUintiff was in Johannesburg. A second power
was then put in which was accepted.
Judgment was given for plaintiff with oosts.
The following were the Besident Magistrate's
reasons :
I h< Id that the first power was void, as the
agent'8 name and other matter was filled in
after execution of the same by plaintiff, but
that under the circumstances as detailed in the
records, plaintiff's agent could proceed with the
case by virtue of the second power.
I held that although the marriage still
subsists, the plaintiff was entitled to sue under
the deed of separation. I found that there was
no evidence of any breach by plaintiff of the
provisioos of the deed, and that the amount sued
for being in arrear could be recovered by her.
Against this decision the appeal was now
brought.
Mr. Graham for the appellant : I cannot sup-
port the first exception that the power to sue
was not dated. As to the power of a wife to
sue her husband under a deed of this sort, the
wife's right is pretty clear; see section 61 of
Act 20 of 1866. But the wife is not entitled to
do what she seems to have done, i.r.« go to
Johannesburg with the girls, without the con-
sent of the husband. Such an agreement could
not give her the right to take even the girls (to
whose custody alone she was entitled) away
from the Colony, and thus render it im}>08sible
for the father to get access to the children, as he is
not a man of means. She obtained no consent
from him, and there was nothing at the time of
the deed of separation to show that they con-
templated living elsewhere than in the colony.
De Villiers, C. J. : It is unnecessary to make
any observations regarding the frivolous excep-
tions taken in the Court below. They have not
been relied upon by counsel for the defendant^
and I may therefore at once proceed to the real
questioD, whether the plaintiff is entitled to re-
cover any maintenance money from the defen-
dant so long as she keeps the children outside
the jurisdiction of this Court. The deed of
f
116
«pir«iioo does not expressly state thtt the
pbiatiff «baU not remote tlie firirls from the
Coiooy, bat it is » fair inference from the pro-
inooe of the deed., thnt slie should not have
tktf power withont the consent of her husband,
Ik defendant. Sbe ^wwlb allowed to have the
«U)dy of the sirls, but he ^ras to have the right
to roume the ciu-iody if she did not take proper
OR of them. This risht it would be difficult
if DOi im;oeeible for him to exercise if she
leaained with the children at Johanneeburg.
Again, the fact that under the deed she is to
lave the furniture in their house at Woodstock,
tends to show that her departure from the Colony
was not eoAtemplated by either party. The hus-
band is legally entitled to the custody of the
children of the marriage, and where he agrees
to part with any of his paternal rights in his
wife's favcuT be must be held to have reserved
all thoee rigbta which he has not expressly
parted with. The appeal must be allowed and
jndgmententerel for the defendant
[Appellant a Attorney, D. Tennant, jun.]
t 1897
AKD CO. V. DUNK AHD CO. J ^^^^^ '^^
Prinapal and agent — Attorney — ^Autho-
rity — Credit.
Where a firm of attorneys airry on
busineM* in iico iowna and employ an
agrnt in one of tlieni to Cfimluct the
iKtniness in their itftrne^ a trade^innn
im nf»t entitled to recover from the
firm Vi* price of go^nU bought by the
€¥ff^fU in Vie mime of the firm without
jn-tyf that the goods were in fact
mtj^ifd to thefirm^ or that the agent
had auihorUy^ express or implied^ to
j^^ge his princijKd^ 8 credit for sucfi
jfurrhnses.
This was an appeal from a decision of the
Beaident Magistrate. East London.
Tbe plaintifCs (novr appellants; sued the
defeodaDts for £8 Ss., alleging in the summons :
1. ThepIaintiiE is an attorney practising at
Aliwal North, and the defendants are mer-
•hanta carrying on business at East London.
91 The plaintiff prior to November, 1895,
acted for and on behalf of one Louis F. Eeese,
of Lady Grey, in divers matters and lawsuits,
aad he owed plaintiff a considerable sum for
&» and diabnnements.
3^ In Novemher, 1896, the said Louis F.
ij^ed to defendants the whole of his
estate and effects, in consideration whereof the
defendants agreed to pay all the debts and
liabilities of the said Louis F. Keese, including
plaintiff's claim.
4. The defendants denied liability on plain-
tiff's claim for the tull amount, but offered to
settle the same for £130, which offer was duly
accepted, and of which sum the defendanta
have paid on account £121 lis., but refuse to
pay the balance of £8 9b. as above stated.
The following exception was raised by the
defendants :
The defendants, who are the assigns of the
said Louis Fred. Eeese, except to the summons,
and say that they should have been sued in
their representative capacity as such assigns
and not as a partnership firm.
The point was reserved for consideration.
The defendants then pleaded :
1. The defendants admit paragraphs 1 and 2 of
plaintiff's summons and the assignment to them
as assignees, but deny the other allegations in
the summons.
2. Defendants further say that the estate of
the said Louis F. Keese became indebted to the
plaintiff in the sum of £130, and the plaintiff
was indebted to the said estate in the sum of
£8 98. for goods sold and delivered,
3. The defendants, as assignees of the said
estate, set off the said sum of £8 98. against
plaintiff's claim, and on the 6th June last paid
the plaintiff the sum of £121 lis., by cheque in
settlement of balance and gave him a receipted
account for £8 9s.
4. The plaintiff cashed the said cheque and
retained the said receipted account, and the
accounts were thereby settled.
Judgment was given for defendants with costs.
The facts of the case appear sufficiently from
the Resident Magistrate's rea ons which were
as follows :
The matter in dispute is a sum of £8 9s. ; this
the defendants claimed as due to the estate of one
Eeese, and to them under a deed of assignment,
riaintiff is an attorney, practising at Aliwal
North, and had a branch business conducted by
one Bu Toit. There was due to plaintiff by
Eeese a certain sum for professional services,
and after the assignment to defendants, this
claim was discussed and plaintiff decided to
accept a lump sum of £130 in settlement.
It also appears that there was a contra claim
of ^8 98. in Eeese's books— this being the
subject of the action. The plaintiff appeared to
take up a very shifting position during the pro-
gress of the case. First he sued defendants as a
firm, but in the body of the summons he desoribes
them as assignees of Eeese. When the defen-
dants excepted to the form of the summons
116
p'tiintiff argued in support of his proceed iog,
and yet Inter on ho iasiBted on the production
of the deed of aHdigniucnt, in order it seemed to
prove that the defendants were the assignees.
Partly because the i)arties had evidently
admit tod their respective capacities, I reserved
tlie point, and further in view of the judgment
formally arrived at, the exception was not con-
sidered or in fact overruled.
Next it was nought to contend that the
amount of £8 9&. had be n included in the sum
of £180 agreed to be paid to plaintiff, and lastly,
the indebtedness of plaintlif m as denied on the
ground that Du Toit had no authority to pnr>
chase the goods on account of plaintiif, and that
they were really recjuired for Du Toit's private
use.
The real issue, as I apprehended, was reduced
to these two questions :
(a) Was there any evidence that the sum of
£6 ^B. had been included in the £130 1
(b) Had Du Toit authority, actuator implied,
to purchase the goods on account of plaintiff 1
And was there suflicient evidence to support a
finding that they were for the use of the plain-
tiff's business ?
I found in the negative on (a) and in the
aftirmative on {b). There seemed nothing un-
reasonable in such small requirements, for which
Du Toit must be presumed to have had autho-
rity, Du Toit was net produced and there is
evidence that he gave orders to have these goods
distinguished from his personal account. I fail
to trace any analogy between the decided cases
relied on by plaintiff (Scott v. Sysier^ 9 J. 53, and
StigUngh v. French^ 9 Juta 393). They decide
certain points relating to the appropriation of
payments, and the plaintiff appears to have
relied upon them to support his action from
appropriating the value of defendants' cheque
and the detention of the receipted account.
[The plainti^ in his aniwors to some interro-
gatories i^tutcd that DuToit acted under general
instructions, and had no properly executed
power of attorney, and that he had no autho-
rity to contract any liability in plaintiff's
name.]
Mr. Searle, Q.C.. for the appellant.
Mr. Innes, Q.C., for the respondent.
Alter argument on the facts, the appeal was
allowed, with costs.
De Villiers, C.J. : The only question to be
decided is whether the plaintiffs are liable for
the amount which the defendants claim the
right to set off. They would be so liable if the
goods had been supplied for the purpose of
their business, or if they had expressly or tacitly
authorised Du Toit, their agent carrying on
business in their name at Lady Grey, to pur-
chase the goods in their name. The burthen of
proving either of theee facts lies upon the
defendants, who claim the right to set off. The
Magistrate in giving judgment in their favour
relied to some extent upon the fact that the
plaintiffs did not produce bu Toit as their
witness, but as the defendants alleged that he
bad the requisite authority they ought to ha^e
produced him. In the absence of any proof
that the goods ever came into the plaintiff*!
possession, or that they authorised Du Toit to
purchase the goodd in their name, I am of
opinion that the Magistrate erred in giving
judgment for the defendants. The appeal must
be allowed with costs in this Court, and judg-
ment entered for the plaintiffs in the Court
below.
[Appellant's Attorneys, Mcpsrs. Kindlay &
Tait ; Respondent's Attorneys, Messrs. Van Zyl
ii Buissiiin^.]
SUPREME COURT
[Before ihe Hon. Mr. Justice BucuANAJf.]
ADMISSIONS.
j 1897.
\ March 12U].
Mr. Buchanan applied for the admisaion of
Mr. Ernest Walter Abbot as an attorney and
notary.
The application was granted, the oaths to be
taken before the Registrar of the Eastern
Districts Court.
Mr. Bearle, Q.C., applied for the admission of
Mr. Charles Hermanns Maasdorp as a
conveyancer.
The application was granted
Mr. Bearle, Q.C., applied for the admiasion of
Mr. Anthony van Ryneveld as a oonveyanoer.
The application was granted.
Mr. Close applied for the admiasion of Mr.
Walter Rowland Curtis as an attorney and
notary.
The application was granted, the oaths to be
taken before the Resident Magistrate of
Oudtshoom.
Mr. Close applied for the admission of Mr.
Vincent Charles Cloete as an attorney and
notary.
The application was granted.
r
117
PROVISIONAL BOLIi.
STAHDAKD BANK T. DK VILLIBBS.
Mr. Innea, Q.C^ applied for the final adjadioa-
tioD of ihe dafendant's estate, the proriBional
oidB'baTiiig been granted on February 23.
Gnuited.
LIKD V. PITOUT.
Mtw Iredgold moired : (1) For judgment for
tke ram of MSO 18b. 9d., being balaooe of an
■eoouBt for money lent, and (2) for proviciional
Katenee on a mortgage bond for £1(K), with in-
ierat at the rate of 7 per cent, from July 1,
vm.
Graated.
BABTHOIiOMBW V. STABLBFOBD.
Mr. Buchanan moved for the final adjudioa-
tioB of the defendant's estate, the proviBional
order baTing been granted on March 6.
Oraated.
CLB6HOBN AlfD UABBIS V. BMITH.
Mr. Tredgc^d moTed for the final adjudicntion
of the defendant's estate, the proyisional order
hsTing been granted on February 6.
Grsnted.
▼AH DKB BTL AHD GO. V. POOLS.
Mr. Jones moved for judgment for £46 18b.
Bd, being an account for goods sold and deli-
vcnd, lees JS25 paid on account since the issue
of the snmmonSt
Gmted.
GBNBRAL MOTIONS.
Dl TBI MATTKB OF THB MINOB8 DB LANQB.
Mr. Innes, Q.C., applied for confirmation of
^ lale of certain shares in farms in the divi-
■km of Somerset.
Tbe Court granted an order, so far as the
fflison* portions were concerned, authorising
theeale of one-eighth of the property, the pro-
oecds of the sale to be paid in to the Master.
BBOOKB8 y. BBOOKBB.
Mr. Jones moved to make absolute a rule niH
Uk divorce.
The application was granted, with costs.
or TBB MATTBB OF THB MINOB PAUL8BN.
Mr. Joubert moved cm behalf of the minor's
titor to be rdieved of his trust.
The application was granted, the Master to
be authorised to appoint some proper person in
the place of the retiring tutor.
IN THC MATTEB OF THB MINOBB COBNWXLL.
Mr. Jones moved for leave to the
executors of the estate of Oeorge ThomaB
Oomwell to sell certain property at the corner
of St. QeonceVstreet and Hout-sireet, Cape
Town, linown as Sydney Chambers.
Granted.
MBDEB Y. MABQUABDT.
Mr. Jones moved to bar the defendant from
proceeding with his appeal from the decision of
the Besid'int Magistrate's Court at Upiugton.
The application was granted, with costs.
IN TUB MATTEB OF THB MINOBB VI8AGIB.
Mr. Ward moved for the appointment of the
grandfather of the minor Hendrik W. J*
Visagie, as curator of their persons and property,
^n lieu of their father's parental authority and
control.
The Court granted a rule nUit returnable on
May 1, calling upon the father to show cause
why the grandfather should not be appointed as
curator of the persons and property of the
minors, the rule to operate as an interim inter-
dict to restrain the father from interfering with
the minor girls now in the petitioner's custody.
IN THB MArrBB OF THB MINOB PABKBB.
Mr. Jones moved for authority to the father
to enter into an agreement of the lease on
the minor's behalf.
Granted.
IN THE ESTATE OF THE LATB BALPH HOBAGE
MUBBAY.
Mr. Tredgold moved for leave to the executor
to pass a second bond on certain property in
Bedford bearing interest at 7 per cent., in
favour of Lay worth k Co. for £218 16s. 2d.
The order was granted in terms of the appli-
cation, subject to the prior settlement of the
daimsof the other creditors, the costs of the
application to come out of the estate.
IN THE MATTEB OF THE PETITION OF GHABL
JACOB YENTBB.
Mr. Trddgold moved for authority to
sulidivide the farm Strydam, in the
division of Philip's Town, and for authority
to the Registrar of Deeds to substitute
118
the defined share sb mort^^agod to petitiooer's
minor daughter instead of the undefined ^ hare,
in terms of Act 16 of J892.
Granted
us THE ESTATE OF THE LATE CAROLINE
SAMET.
Mr. Benjamin moved to make absolute a rule
nUi granted under the Titles Registration and
Derelict Lands Act, 1881.
Granted
IN THE MATTER OF THE GLOBE DIAMOND-
MINING SYNDICATE.
Mr. Innes, Q.C., moved for an order for the
winding-up of the syndicate under the Com-
panies Act of 1892.
The Court g anted the usual winding-up order,
Mr. Porter to be appointed liquidator, and the
appointment of Mr. Silberbauer as solicitor was
approved of.
IN THE MATTER OF THE ALIWAL NORTH BOARD
OF EXECUTORS AND TRUST COMPANY.
Mr. Molteno appeared to present the fourth
and final report of the liquidator and the usual
liquidation account
The Court granted the usual order.
IN THE MATTEB OF THE MINOR BTEMMET.
Mr. Jones moved to confirm the sale of cer-
tain land belonging to the minor in the division
of Robertson to Johan W. iStemmet, and for
leave to the minor's father to sign the necessary
power to pass transfer.
The Court granted an order, subject to the
payment of the purchase price of the property
into the Master's fund.
IN THE MATTER OF /AMES HENRT CARTER.
Mr. Buchanan moved for an order on the
Master to accept the death notice of James
Henry Carter, and to call a meeting of next
of kin and creditors for the purpose of appoint-
ing an executor dative to his estate.
The application was granted and the Master
authorised to accept the death notice and take
the usual steps, the costs to come out of the
estate.
IN THE MATTER OF THE MINORS HERB8T.
Mr. Buchanan applied for leave to sell certain
property, and for the appointmeLt of Mr. J. J.
de Yilliers to superintend the expenditure of
proceeds on certain repairs to the buildings.
The application was granted in terms of the
Master's report.
IN THE MATTER OF THE PETITION OF KIHSY
BRUNBITB.
Mr. Molteno moved for an order authorising
the Master to pay to him, as father and natural
guardian of Peter ClemenH Brunette, the Fum of
£100 out of the capital sum of £475, and tog^ant
such further or other relief as their lordships may
see fit.
The Court granted the order, subject to
security being given by the two major sons to
the Master to repay the money in the event of
the minor son not attaining full age.
MBAMBONDUNA V. DHWANL
Mr. Innes, Q.C., moved for leave to proceed
under the 190th rule of Court.
After the application had been part heard,
th matter was postponed till April 12.
LAWRENCE V. BONNIWELL AND f 1897.
VBALB. (March 12th.
Lease — Sale —Interdict — Transfer.
B. let a houHC to Jj. /or ttro i/eare,
underUihiug to let Jj, have posaension
on a given date; hut shortly after-
irarda receiccd an offer from V. to
purchase the houne.
B. undert^tiuuling th<U L. iixi9 willing
to cancel Uie lease, told thehtmae to V.
ami undertook to give him poawsaion
on the same date as Viat on which L.
was to have entered on occujxition,
B., however, had acted under a mis-
taken impreasion in thinking that L.
had cancelled the agreement of lease ^
aiid L. claimed jwssession, as diil V.
On application hg L. a rtUe nisi issued
restraining B from transferring the
house to v., save subject to the terms
of the leane; and also restraining V.
from entering into possession* On
tlie return diiy,
The Court made tlte rule absoltUe
with costs.
This was the return day of a rule *iUi granted
to operate as an interim interdict restraining
the respondent Bonn i well from transferring to
the reBix>ndent Veale certain house situate at
Green Point, unless such transfer be made sub-
ject to the terms of an agreement for the lease
of the said house to the applicant, and from per-
mitting the respondent Veale from entering into
possession thereof.
119
The applicant in his affidayit alleged that in
February, 1897, the re«poD-leDt Bonniwell let a
certain hotue to applicant for a term of two
years from the let April, 1897.
That the respondent Bonniwell subiiequently
Eold the houne to Veale, and agreed to give
possession thereof on the Ist April, 1897.
That applicant had already given notice to
the lessee of the house in which he was living at
the time, and would be seriously inconvenienced
if he could not get possession of the house on
the date agreed upon.
That the existence of the lease in no way pre-
judiced the value of the house, and that in fact
applicant had offered to buy the house at the
price offered by Veale.
The respondent Bonniwell filed an affidavit, in
in which he stated that on the eame day on
which Lawrence verbally entered into the lease
with him, he received an offer from Veale to
purchase; that he proceeded to consult with
Lawrence, and that he understood that Lawrence
waived his rights, and that thereupon he closed
with Veale : that he then ascertained that there
had been a misunderstanding and had since
then endeavoured without effect to arrive at a
settlement, but that neither Veale nor Lawrence
wouldgive way ; and that he had never intimated
that he would not give Lawrence possession on
the due date.
Mr. Junes, Q.C., applied that the rule be made
al solute.
Mr. Benjamin, for the respondent Bonniwell
opposed. He cited Kerr (on Injunctions, page
428). The applicant's remedy is wrongly con-
ceived. We admit that the Court can grant an
interdict to stop an anticipated wrong ; but the
Court must have clear proof that the anticipated
wrong will happen. There is no c'ear proof that
any damage will happen. Moreover the injury
apprehended could be repaired by obtaining
damages in an action, and therefore the inter-
dict should not be granted Kerr: (on Injunc-
tions, page 14). The application for the interdict
was unnecessary because respondent clearly
informed the applicant that he intended to
carry out the agreement. The question is one
of costs really.
Mr. Innes in reply : As the question is one of
costs the test is, is the application one of neces-
sity ? Clearly it is, because the respondent, as he
opposes it, evidently does not want to be handi-
capped by this rule ; which is a complete justifi-
cation for our action.
The rule was made absolute with costs.
The Chief Justice said: The dispute
in this caFc is that Bonniwell had leased
his property to Mr. Lawrence, after which
be had a conversation with Lawrence^ from
which he gathered that Lawrence would not
insist upon the lease being carried out, and on
that understanding he went and sold the pro-
perty to Veale. It is admitted now that there
was a misunderstanding. If Bonnisrell had
clearly told the applicant that he would give
Lawrence possession on the 1st April, Lawrence
would have had no right to come iuto court.
The communication was not made by Bonniwell
direct to Lawrence or his attorney, but was made
through Bonniwell's solicitors. I think, looking
at all the correspondence, the applicant was
justified in applying to the Court for an inter-
dict. Although it is imj ossible to help sym-
pathising with Bonniwell, the Court must make
the rule absolute, and as he opposes it, it must
be made absolute with costs against him.
[Applicant's Attorney, W. E. Moore ; Respon-
dent's Attorneys, Messrs. Van Zyl k Buissinn6. j
SUPREME COURT.
[Before the Hon. Mr. Justice Buchanan.]
In re pktkr oibbon. | Mareh 16th.
Mr, Innes, Q.C., mentioned this matter, which,
he said, was of some urgency, and concerned the
attachment of a sum of money wnich there was
reason to believe was being dealt with. It
appeared that one Peter Gibson was formerly a
commercial traveller in the employ of J.
Garlick, whose managing clerk, Baptist Hodg-
sitt, now claimed a sum of £25 12s. 2d. in
respect of jewellery and moneys entrusted to
Gibson, and further petitioned for the attach-
ment of a sum of £50 recently received from
England by James Mercer of this town, on
account of Gibson, who is at present in the
Transvaal.
The Court granted an order for the attach-
ment of the money ad fnndandani jvrUdU'
tianem, with leave to sue by edictal citation,
personal service to be effected, and the order
made returnable on May 1.
TUKVKY V. BRADFJBLD.
Mr. Molteno applied tor provisional sentence
ou two promissory notes, the first dated Queen's
Town, 19th October, 1894, for £201 16s. lOd , and
the second dated Bloemfoutein, 17th July, 1896,
for £7.
The application was granted.
120
WOODHBAD, PLANT AKD CO, T. GULLT.
This wu a matter in which leave to appeal to
the Priyy Counoil was Rougbt in oonneotion
with the judgment of the Court in the matter
of the ship Oheron heard on March 4 last, judg-
ment being given for the defendant A sum of
£600 and other items were involved.
Mr. Searle, Q.C., appeared for the applicants,
and Mr. Innes, Q.O., for the respondents.
Leave to appeal was granted, execution not
to be stayed, and security to be given.
IN THK INSOLVBNT KBTATB OF BOBVBT HAMBLT.
Mr. Buchanan applied, on behalf of J. H.
Paley, of Bast London, for an order declaring
the office of trustee in the above estate vacant,
and calling upon the Master to call a meeting
for the election of a trustee in the place of
Themas Brown, deceased.
The application was granted, the costs to
come out of the estate.
In re J. o. DB wet.
This was the petition of M. J. de Wet and
W. G. Lombard for the appointment of
Frederick Hamilton Jonee as evrator ad litem
for J. G. de Wet, of Queen's Town, for the pur-
pose of instituting proceedings against the
latter tu have him declared of unsound mind.
The order for the appointment of the ^urat^r
ad litem was granted, the summons to be served
on the alleged lunatic, as well as on the carator,
and to be made returnable at the next eeesions
of the Circuit Court at Queen *s Town.
SUPR EM E COURT
(IN CHAMBERS).
[Before the Hon. Mr. Justice Buchanan.]
BODKIN V. HOBKINS.
) 1897.
)Maroh 26th.
This was an application by the defendant for
the discharge of a writ of arrest on a debt of
£36, on the ground that the applicant was pre-
pared to confess judgment for that amount.
Mr. Innea, Q.C., appeare I for the applicant :
the respondent was in oourt, but was not repre-
sented.
The Court made an order for judgment in
terms of the confession of judgment, and the
applicant was released from arrest.
r
CASES DECIDED IN THE SUPREME COURT,
SUPREME COURT-
LBefore the Rl^ht Hon. Sir J. H. DB Yilluebs,
P.O.. K.C.M.G. (Chief Jastioe), and Hod.
Mr. JoBtice Buchanan.]
3 1897.
i April 12th.
MAGISTRATE'S BEKTSNCB
SKYIEWED.
The Chief Justice said a case had come before
Um M judge of the week in which a man
limed Gedult was charged before the Resident
Migistrate of Ste1lenbo»ch with theft by meauB
of embesz'.ement. The case was remitted to the
Magistrate by the Attorney-Qeneral under Act
i3 of ]8So, and when the ca&e was heard the
priioDer pleaded guilty and was sentenced to
two years' impriaonment with hard labour.
Under Act 43 of 1895, however, the Magistrate
|*<i power to sentence the prisoner to one year's
imprisonment only, but perhaps he might have
teen milled by the fact that the prisoner
pleaded guilty at the trial. The sentence must,
therefore, be reduced to one year.
ADMISSIONS.
Mr. Innea, Q.C., moved for the admission of
Mr. Frederick George Gardiner as an advocate.
The application was granted.
Mr. Jones moved for the admission of Daniel
P.Blaney as an attorney.
The application was granted.
PROVISIONAL ROLL.
iDAMB Y. THB CAPE OOLONI8ATI019 COMPANY.
Mr. lanes. Q.C., applied for provi^onal sen-
teaoe on a promissory note for £300 14s.
The application was granted.
CELLIESS AND CO. V. BAZIBR.
Mr. Jones applied for provisional sentence on
t Bortgage bond for £175, with interest at 7 per
eentfrom April 1. 1886, less £66 13s. 3d. paid on
iflooont. and that the property be declared
nsentable.
The applioation was granted.
COHBN Y. LB DU.
Mr. Close applied for proviuional sentence
on a mortgage bond for £126 with costs, and
asked that the property specially hypothecated
be declared executable.
The application was granted.
WHI'BB, BY AN AND CO. Y. OBBBNFIELD.
Mr. Jones applied for iinal adjudication of
the defendant's estate, the provisional order
having been granted on March 24.
The application was granted.
DAVISON BROS. Y. JOUBBRT.
Mr. Maskew applied for provisional sentence
for £25 13s. 4d. with cobts, being the balance
due on a promissory note.
The application was granted, subject to the
production of the certificate of presentation.
MCLEOD V. HENRY rERRINS, JUN.
Mr. Jones applied for the discharge of the
provisional order of seque(«tration.
The application was granted.
STBTN AND CO. Y. HBWITSON, JEFPBBY AND
ANOTHEB.
Mr. Jones applied for the discharge of the
provisional order of sequestration.
The application was granted.
ALFORD, WILLS AND CO. Y. BOSMAN.
Mr. Jones applied for the final adjudication
of the defendant's estate, the provisional order
having been granted on March 16.
The application was granted.
BERNSTEIN Y, COLLINO.
Mr. Benjamin applied for provisional sentence
on a promissory note for £428, less £50 lOs. 5d.,
with interest from December 1, 1896.
The application was granted.
WATSON AND CO. V. BBOADBENT AND CO.
Mr. McGregor applied for provisional sentence
for the sum of £400 5s. lid., with interest, on
four promissory notes, less a certain amount
reoeived on account.
The application was granted.
122
BAUHANN AND CO. V. CILLIE.
Mr. Close applied for proviBional sentence for
472 J6s. Id. on a promiseory note, with interest
and costs.
The application was granted.
THB MASTER V. FBBBEIRA'B B-XIBCUTOB.
Mr. Shell, Acting Attorney-General, applied
for the usual order calling upon the defendant
to file an account.
The application was granted.
GENERAL MOTIONS.
ILLIQUID ROLL.
WITHIN8HAW AlO) 00. V. LINDfiAT.
Mr. Jones applied for judgment under rule
329 for £90 Ss. Ud., for goods sold and delivered.
The application was granted.
TABLK BAY HARBOUB BOABD V. THB MA8TBB OF
THB &6. *'GOBDON CASTLE.
II
Mr. Close applied for judgment, under rule
829 id), for £894 7s. and costs, for Graving
Dock charges and ordinary dock dues.
The application was granted.
■TEPHAM BROS. V. THE ANN AND ALB BAKING CO.
Mr. Close applied for judgment, under rule
829 id), for £110 17b., with interest and costs,
for goods sold and delivered.
The application was granted.
COHBRINCK AND CO. Y. PESCOD.
Mr. Jones applied for judgment for £40 for
rent.
The application was granted.
RBHABI LITATIONB.
Mr. Benjamin applied for the rehabilitation
of John Mouncey McDonald, of Johannes
Loubser, of Gabriel Frangois Basson, of Pieter
Jacob Johannes de Villiers, and of Frederick
William Baxter.
The applications were granted.
Mr. McGregor applied for the rehabilitation
of Hendrik Albertyn.
The application was granted.
Mr. Joubert applied for the rehabilitation of
Johan Jacob Piton.
The application was granted.
Mr. Maskew applied for the rehabilitation of
Johannes Lodewyk Steyn.
The application was granted.
Mr. Searle. Q.C., applied for the rehabilitation
of Paul Jacobus Albertus du Plessis.
The application was granted.
ABRAHAMS V. ABRAHAMS.
This was an application by the wife, who said
that she had been married thirty-three yean
and that there were no children of the marriage,
for leave to sue in forma pavperU for divorce.
The Court referred the matter to counsel, and
appointed Mr. Jones to act.
OABLICK Y. GIBSON.
Mr. Shell, Assistant Law Adviser, asked that
this case (one for leave to sue by edictal cita-
tion) might stand over.
The Court ordered it to stand over till to-day.
IBWIN V. GABLICK.
This was an application by Messrs. Irwin k
Meehan for the release from attachment of cer-
tain goods in their possession, which were
attached ad fvndandam. jurMictUmeni in the
suit Garlicky, GiUon,
Mr. Searle, Q.C., for the applicant
Mr. Sheil, A sistant Law Adviser, for the
respondent.
This application also was ordered to stand
over till to-day.
TN THE MATTER OF THE PETITION OV HELENA
MARIA OPPEL.
Mr. Close applied for leave to sue by edictal
citation for restitution of conjugal rights, failing
which for divorce.
The Court granted the application, personal
service to be effected if possible, failing which
one publication in a Bulawayo paper ; the order
to be made returnable on the last day of the
May term.
Leave was also granted to serve the intendit
and nolice of trial with the citation.
THE CO-OPEBiLTiyE BAKING COMPANY, LIMITID,
IN LIQUIDATION UNDER THE OOMPANIBB'
ACT OF 1892.
Mr. Close appeared to present the liquidator's
report.
The Court granted the usual order.
IN THE MATTER OF THB PETITION OF WAI0H
AND WALSH, FORMERLY TRADING AS WAUSH
BBOS.
Mr. Jones applied for the rule nUi to be made
absolute for transfer in name of petitioners of
certain land in the division of Caledon.
The application was granted.
123
II IHI IBTATR 0¥* TT^K
SEB CHABLBS
Mr. 8«trl©, Q.C., Applied on behalf of
the exeoator dative :fox- authority to
^ B«xiatrar of Deeds ^o pass transfer to
theeittt* of certain 1&ti<1 in tbo dividon of
Peddle, marked in tlie ^^enera] plan as lot P,
ffleaguring 356 morgen 230 square roodi;, granted
to Adolph SniBt Bauer on February 1, 186i
The Court granted a rule 7s^isi calling upon
penoQs having, or pretending to have, any
right to the property to appear on August 2 and
crtabluh tbeir claim, tiie rule to be served on
the repreaentatiTea of tiie late Captain Bauer.
Gf THE lATATK OF TH1£ r.^TB MACKESO KULU.
Vr. Close applied on behalf of Lutuka
Knln, iiie only son by his first wife
of the late Mad^eso Kulu (married
aceording to native custom), for authority
to the KegiBtrar of Deeds to enregister in his
aame and as bis property certain land in the
Tambookie location, district of Glen Grey,
Bieaaunng 1,216 morgen and 90 square roods, as
per deed of transfer in favour of his father, and
dated November 2H, 1S86.
The Court granted a rule nisi calling upon
all per^na interes^ted to show cause on May 20
wby the property should not be transferred to
the applicant. Publication of the rule to be
made aa in the case of In re Mahonga (6 Juta,
Si 7).
PETITI017 OF TH^ GUDTBHOOBN TOWN
COONCIL.
Searle, Q.C., applied for outhority
to the R^strar of Deeda to paas
transfers of the eighth share of the
ranatning extent of the farm Hartebeest
Kiver, and the eighth share of the remaining
estent of the farm Qrobbelaara Biver, to
petitioner in due course from the Yarious
parties who have acquired the right to transfer
ibe eighth of the remaining extent from the
estate of the late Cornelia Petrus Rademeyer
the order of the Circuit Court for Oudta-
dated 2.^^ March, 1886, upon the oondi-
that petitioner ahall be bound to pass
transfer of thoee defined portions of the re-
naaiBdcr which was aold by the raid Rademeyer
and others, or any subsequent proprietor to the
orii^nal purchaeera, or to any persons who may
estaUiah their right to receive title of any of
the defined portions of the remaining extent of
these farms.
The Court granted a rule mH calling upon all
persons etmeemed to sliow cause, on May 20,
why iituisfer should not be made, the rule to be
pohltfiied in the "Oudtshoorn Courant*' in
the Xhitcfa and Bnglish languages.
O006KN V. GOOSBN.
Mr. Jones applied for a decree of divorce, and
for the custody of the minor children of the mar-
1 iage. defendant having failed to comply with the
judgment of the Court for restitution of con-
jugal rights.
The application was granted.
BSTATE OF THE LATB DAVID PIBTBB KBYNAUW.
Mr. McGregor applied for the rule nisi
to be made absolute authorising the Registrar
of Deeds to cancel a bond for £280 passed by
the late D. P. Krynauw on the 26th February,
1858, between Johannes Conrad Wicht, now
deceased, the said bond having been satisfied,
but lost.
The application was granted.
BETBB V. BEYBB.
Mr. Searle. Q.C., applied for a decree of
divorce and for custody of the children of the
marriage, and for a declaration that the defen-
dant has forfeited all benefits under the com-
munity, defendant having failed to comply
with the order of the Circuit Court for Prince
Alfred for restitution of conjugal rights.
The application was granted.
VILJOBN ▼ VILJOEN.
Mr. McGregor applied for a decree of divorce
on behalf of the husband, the defendant having
failed to comply with the order of the Supreme
Court for the restitution of conjugal rights.
The application was granted.
VAN SITTBBT V. VAN SITTBBT.
Mr. Searle, Q.C., applied to have one Pieter
van Sittert, formerly of Queen's Town, and now
an inmate of the Graham's Town Asylum, de-
clared of unsound mind, and for the appoint-
ment of a curator of his property.
The Court granted an order declaring the said
Van Sittert to be of unsound mind, and appoint-
ing Henry William Magor as curator of his
property.
BEOINA V. MITOHBLL.
f 1897.
} April 12th.
Prosecution — Nuisance - Municipal
regulations — Act 14 of 1859 - In-
jured party— Right to proBecute —
Private prosecution.
M. contravened a clause in local
municipal regulations hy creating a
124
nuisance in allowing certain rotten
vegetables to remain on his premises
exposed in an open yard.
The municipal regulations required
that all complaints as to contraven-
tion of the regulations should be
reported to the Municipal Secre-
tary^ who should get instructions
from the Municipal Commissioners
as to prosecuting the offender; the
complainant, however^ reported
direct to the police and a prosecti-
tion followed f and M. was convicted
and fined.
On appeal on the grounds that the
regulations had not been complied
with and that no private prosecution
for such an offence could take place.
The Court dismissed the appeal.
This was an appeal from a ooHviotion of the
appellant by the Assistant Resident Magistrate
of Cape Town for a contravention of section 22
of the regulations of the Green and Sea Point
Municipality, framed under the provisions of
Act 14 of 1859, by creating a nuisance tending
to injure the health and affect the comfort of
the inhabitants, by neglecting to remove a
quantity of rotten vegetables from his premises
and allowing the same to lie exposed in his yard
at Green Point.
The defendant pleaded not guilty.
The evidence for the prosecution showed that
the nuisance existed for about a fortnight, dur-
ing which time several persons living in the
vicinity of the defendant's house complained of
the stench and requested the defendant to re-
move the cause. He neglected, however, to do
so. The matter was then reported to the police
and the prosecution followed.
The defendant did not tender any evidence,
but on the conclusion of the case for the prose-
cution his agent opplied for a dismissal of the
•ase on the grounds :
1. That it had not been proved that section 2
of the regulations had been complied with, and
2. That inasmuch as the prosecution was a
private prosecution, no private prosecution for
such an offence could take place.
Sections 2 and 22 of the Municipal Regulations
are as follows :
2. All complaints or informations of the con-
travention of the following regulations shall be
made to the secretary of the Municipality, who
shall forthwith make due entries thereof in a
book or books to be kept for that purpose, and
shall submit the same to the Commissionera,
and shall take instructions from the Commis-
sioners as to whether such complaints shall be
prosecuted or not.
22. Any person creating any nuisance which
may tend to injure the health or in any way
affect the safety, comfort, or rights of the in-
habitants, shall be liable upon conviction to a
fine not exceeding JLIO.
The defendant was found guilty, and sen-
tenced to pay a fine of £3. The Magistrate
dismissed both the exceptions, holding with
regard to the latter that it should have been
taken before the plea was recorded.
From this conviction and sentence the present
appeal was brought.
Mr. Molteno, in support of the appeal : The
regulations are framed under section 23, Act
14, 1859. Clearly the provisions of the regula-
tions wei e not complied with : particularly as
regards section 2. In the municipality the
Police Offences Act is in operation. Two seta
of regulations are therefore in force : under the
one, i.e, the Act, the police have a locus standi
to sue ; under the other they have no hens standi
till they are authorised by the Commissionera
after a report by the complainant to the Com-
miscioners, which has not teen made yet in this
case. They have elected to go on under the
latter (i.e,, the regulations). The summons should
not have charged the defendant with contra-
vening the regulations, it should have charged
under the Police Offences Act, No. 27 of 1882
(section 5, sub-section 26). As a fact also the
penalty under the Act is A2 : under the regula-
tions it is more. The police have never prose-
cuted in oases of contravention of municipal
regulations; the police should have prosecuted
under section 5, sub-section 26, Act 27 of 1882.
Mr. Shell, Assistant Law Adviser, for the
Crown: It is dear from the evidence that a
serious nuisance injurious to health, or at least
to the comfort of persons living in the neigh-
bourhood, did exist on the appellant's premises
for a considerable period, viz., from the 7th to
the 25th February, consequently there was a
clear contravention of the 22nd regulation.
It was, however, contended in the Court below,
and the argument has been renewed here, that
the wrong procedure was adopted, and that the
complaint should, in the first iastanoe, have
been made to the secretary of the municipality,
tor the purpose of submitting it to the Commis-
sioners for them to determine whether they
would prosecute or not. It is submitted that
this argument cannot prevail: Mr. Fripp, the
complainant, suffered sufficient iniury withio
the UKaning of Ordinance 4\ section 15, to
entitle him to prosecute privately, ffvnt v
r
126
Homre (1 Jata 379), a case in which an exception
■milar to the exception in the present case was
taken, seems to be conolosive on the point
▲s to its not being a private prosecution the
ssecHid exception taken shows that hoth sides
treated it as a private prosecution althoogh it
was condnoted by the police. Bee Ordinance 8
of 1852, section 2.
The Chief Justice : Was the certificate of the
Attomey*Qeneral not neceesary ?
Mr. Bhiel : No, the prosecution was summary :
lee Act 20 of 1866, Schedule B, Rule 68.
Mr. Molteno in reply : The Municipal Legu-
lationa of Stellenbosch are not before the Court,
and oonseqoently it is impossible to say how the
present case differs from Hunt v. Hoare,
The second exception was wrongly taken, as
the case was clearly a police prosecution.
The Court dismissed the appeal.
The Chief Justice: The 22nd section of the
Municipal Regulations provides that any
petacm creating any nuisance tending
to injure the health or affect the
safety or comfort of the inhabitants
shall be liable, upon conyiction, to a fine not
exeeeding £10. Now in the present case there
can be no doubt that the appellant did create
a nuisance by keeping rotten ))otatoes in
his yard which did affect the safety, or at all
events the comfort, of some of the inhabitants,
that ia. his neighbours. Now the first question
is, could one of those neighbours, who was
suffering from that discomfort, prosecute ?
Appellant's counsel contends that under the
2nd regulation it would not be done, because
that regulation provides that every com-
plaint or information as to the contravention of
the regulations shall be made to the secretary
of the Municipality, who eha-l forthwith make
due entries thereof and submit the same to the
OommissionerF, and take instructions from
them as to whether 6ueh offender shall be
prosecuted. This section only contains directions
■s to the duties of the secretary, and it may be
that the secretary could not prosecute unless he
bad instructions from the Commissioners to do
w>. But the fact that the secretary was so
debarred from prosecuting does not affect the
further question whether any person specially
iDJored by this nuisance had the right to
prosecute. Now under Ordinance No. 4 *,
clearly the neighbours have that power. If they
ipeeiahy suffer injury by this nuisance, they
would be entitled to prosecute, and inasmuch as
the 22Dd regulation is general in its terms and
nbjects the offender to a fine on conviction, I
think that the neighbours wlio were suffering
frDm this discomfort were entitled to
prosecnte. On this point I need only refer te
HufU V. Hoare^ which has been cited in argu-
ment and which is directly in point But
then it is said that the police pro-
secuted. Upon this point we have
the record before us, from which
it appears that both parties treated this as a
private prosecution. It was common cause,
therefore, that it was \ private prosecution,
although the police took it up. Under these
circumstances I thiak that this appeal
ought not to be allowed. It is admitted
that the appellant has been guilty of a
contravention of the Police Offences Act, an4 1
think that the Magistrate was right in con-
victing him.
Mr. Justice Buchanan concurred. He read
the 2nd section of the regulations as giving
instructions to the secretary as to what he
should do in certain circumstances. It could
not, however, take away from any private
individual the rights which that individual
already possessed under Ordinance 40, section
15.
[Appellant's Attorney, J. Ayliff.]
SUPREME COURT.
[Before the Right Hon. Sir J. H. DB Yillibbb,
P.O., E.C.M.G. (Chief Justice), and Hon.
Mr. Justice Buchanan.]
HARTS V. FBAMB.
) 1897.
j April 13th.
This was an application by the plaintiff for
a decree of civil imprisonment in respect of an
unsatifified judgment of £660, being money due
on certain promissory note, balance of account,
and interest.
Mr. (lose for the plaintiff.
Mr. Jones for the def^^ndant.
The defendant, Alex. K. Fraa.e, was called by
Mr. Jones, and stated that two years ago he
told the plaintiff that he was allowed by his
father*s trustees £600 a year, but owing to some
of the investments not being remunerative,
the last accounts showed an income of £400
a year. He now offered to pay £16 a quarter.
The Chief Justice said that it would take
years to pay off an indebtedness of £630 in such
inataliuents.
Witness (continuing) said that the debt for-
merly carried interest at the rate of 24 per
126
eent per month, 1)Ut it only carried 6 per cent,
persnnnni at present. He was introduced to
the plaintiff two years ago for the purpose of
Join log him in a general commission and
brokerage business. He had a wife and a step-
son, and he had also a considerable amount of
debts, which he was at present reducing. Last
year he received £1,000, which was distributed
amongst his creditors.
Cross-examined : His total income was £86
a quarter, and he had formerly received ad-
vances out of the capital from which the income
was derived. He admitted that he had been
treated with very great leniency by the plaintiff.
The trustees of his father's estate had refused to
make any further advances out of the capital.
There was generally a surplus due to him yearly
beyond his allowance.
The Court granted a decree of civil imprison-
ment with costs, the decree to be suspended
pending payment to the plaintiff of £25 per
quarter until the debt and costs shall be paid
off ; the first payment to be made on June 15,
and leave to be reserved to the plaintiff to apply
to the Court at any time for an increase of the
quarterly payment.
[Plaintiff's Attorneys, Messrs. Walker &
Jaoobflohn; Defendant's Attorneys, Messrs.
Findlay&Tait.)
GABLICK V. GIBSON.
Mr. Shell moved for judgment under Rule
829 (i) for £26 12b. 2d.
Judgment was postponed until after the hear-
ing of the following motion.
IBWIN Y. GABLICK. \ 1897.
(GABLICK y. GIBSON.) f April 13th.
Attachment — Release —Costs.
This was an application by William Irwin
calling upon John Garliok to show cause :
1st. Why the ^oods attached by virtue of an
order of Court dated the 23rd March, 1897, in
the suit between Qarlick and one Peter Gibson,
should not be released from attachment. William
Irwin, the applicant, made the following
affidavit :
1. That I carry on business in Cape Town as
a draper and general importer, noder the style
or flrn< of Irwin k, Meehan.
2. That in the month of June, 1896, one Peter
Gibson requested me to supply him with certain
goods to the value of £167 2s. Id., of a class not
kept in stock by me, and which required to be
first purchased in England.
8. That I agreed to supply the said Gibson
with the said goods on the following terms and
conditions ;
(a) That he should pay the sum of fifty
poundB in cash before I would order the goods
from Englnnd.
ib) That the goods were not to become his
property, and were not to be delivered to him
until the balance of £117 2s. Id. was paid to me
in cash upon arrival of the goods here.
4. That the said Gibson agreed to these terms,
and in pursuance thereof paid me the sum of
fifty pounds in July, 1890.
6. That the said goods arrived in instalments
between the months of October, 1896, and
January, 1897, and have been lying at my place
of business ever since.
6. That the said goods were not ordered on
account of the said Gibson, but were purchased
by me on my own account in England.
7. That the said goods are not the property of
the said Gibson, but are my property.
8. That the said Gibson has failed to pay for
the said goods, and has not communicated with
me with regard to the said goods.
9. That I have been informed that the said
Gibson was to be found at Elandsfontein, and
although I have telegraphed to him there, I
have received no communication from him.
10. That as the said Gibson has failed to pay
for the goods in terms of his agreement with
me, I am desirous of disposing of them.
11. That the said goods were intended for a
hawker's up-country line of trade and are quite
unsuitable for business in Cape Town, and if
sold here will, in my opinion, not realise more
than the sum of £100. and that it was for this
very reason that the condition was made that
the sum of fifty pounds sterling should be paid
before the goods were ordered from England.
12. That this Honourable Court has ordered
the attachment of the said goods to found
jurisdiction in a suit between the said Garliok
and the said Gibson, reserving to me, however,
all rights I may have on the same for the
unpaid purchase price.
13. That in order to establish my rights to
such goods and to relieve them from attach-
ment 1 am now forced to institute these pro-
ceedings against the said Garlick.
U. That I have read the petition of the said
John Garlick, dated the 18th March, 1897, filed
with the Registrar of this Honourable Court —
(see extract annexed hereto>~and deny that I
ever intimated to the said Garlick that I had in
my possession goods and cash belonging to the
said Gibson.
16. That I informed the said Garliok and his
attorney, Mr. W. T. Buissinn^ that the goods in
my possession belonged to me, and that they
127
^^ only be delivere^l to tlie said Gibeon
^VOBptymeiii in full of tbe amount due to me
Rtt foUowing is mn es^tract from the peti-
^of JohBQas-UclL, dated 18th March, 1897,
Rbrred to in tike above affidavit :
*Th%ty<rax petltloiier learnt yesterday from
Iiviu tlni \i\b fixni bad in their poBsession
Soode tnd eaah to the re8i>ectiTe value of £160
itil£&Obe\oi\g>iii; to the said Gibson."
''Thii Uieae goode were imported for the
aid Peter Gibeon by the said Irwin &,
Mechan, and ac^inst the imports
the said QVbeon has deposited the sum of
The ioUowing is the order made for attach-
ae&tof the goods in applicant's poeeession :—
HaTing refui the applicant's petition and
affidavit :
It is ordered that any goods in the hands of
Messra Irwin & Meehan, belonging to
l e spo ndent, be attached ad fundandam jftriS'
dictiffnem of this Court in an action by appli-
it against respondent for recovery of the
of £25 12s. 2d., reserving, however, to
Irwin ic Meehanall rights they may
on the said goods for unpaid purchase
And it is further ordered that applicant be
at liberty to sue in the said action by edictal
citation, returnable 12th April next, personal
acrviee to be effected.
The foUowing affidavit by Baptist Hogsctt
was filed by the respondent :
1. That I am managing clerk in the employ of
the respondent.
2. Prior to the respondent's obtainiofl: an order
for tlie attachment of the goods forming the
ffaliject of the present proceedin<(B, he had ob-
an order attaching a sum of £50, then
to be in possession of one Mercer of Cape
and which the said Mercer had admitted
having in his possession. When the money was
attaehed Mercer made a return to the writ to
tbe elbct that he had no money belonging to
Peter Gibson on hand.
IL That a notice of motion for contempt of
Goort waa thereupon served upon the said
Mereer, and in connection with this notice on or
about the 17th March, 1897, the applicant Wil-
liam Irwin called at the respondent's place of
baaliieK, and in my presence and the presence
of tbe reapondent stated that he had received
MSO from Peter Olbson last year on account of
tbe pmebaae price of certain goods to be im-
ported by him from England for the said
Qibmm.
i. The said Irwin also Htnted that he was
perieeUy willios to hand the £60 to the said
Garlick, but that he wished the money attached,
BO as to prevent any claim by or trouble with
Gibson.
6. He at the same time showed the respondent
and me a receipt for the £50 received from
Qibson. This receipt was a simple one for the
amount paid. It contained no conditions of any
kind whatsoever, nor did the said Irwin at that
time say anything about the goods being pur-
chased on a suspensive condition.
6. The applicant was most anxious that the
respondent should withdraw all proceedings
against Mercer, who was that day proceeding to
Bngland on business of the said Irwin.
John Qarlick, of Cape Town, the respondent,
deposed :
1. He is respondent in the above matter.
2. He has read the affidavit of Baptist Hogsett
in the above matter, and confirms what is
therein stated
S. That he has also read the affidavit of
William Irwin, sworn on the 1st of April inst,
and in reply thereto says as follows :
That the condition, that the goods were not to
become the property of the said Gibson, and
were not to be delivered to him until the money
due in respect of their cost was paid, was at no
time mentioned to deponent.
That the said Irwin informed this deponent
that he had Gibson's goods and Gibson's £fiO,
and that he was quite willing that deponent
should attach the money, but that he was not
prepared to hand it over to the Sheriff under the
writ against Mercer unless deponent obtained
an order attaching it.
In reply to the Hth paragraph of the said
Irwin's affidavit, deponent says that notwith-
standing the statement made by the said Irwin,
that he, the said Irwin, did say in deponent's
presence, and in the presence of Baptist Hogsett
and two others, that he had imported the goods
in question for Gibson, but that he was not
going to part with them until he was paid, and
added also that he had also received the £60
from Gibson on account*
The applicant filed the following replying
affidavit : That I have read the affidavit of the
respondent, sworn on the oth day of April inst*,
and also the affidavit of Baptist Hogsett sworn
to on the 6th day of April inst, and in reply
thereto say as follows .*
1. I deny that I ever stated to the said respon-
dent or the paid Hogsett^ that I had imported
goods for Gibson, but I informed both the
respondent and Hogsett that I had certain goods
in my possession which would become the pro-
perty of the said Gibson as soon as he the said
Git)son paid me for them, \nd I also added that
Gibson had last July paid me £50 on aooooat.
12S
That I informed the respondent that I could
not object to his attaching the goods if he could
legally do so, provided my claim to them, was
in the first instance satisfied in full.
3. That in answer to paragraph 8 of respon-
dent's affidavit. I eay that the respondent asked
me what credit I bad to allow the said Gibson.
I replied that as Gibson was a stranger to me
he would have to pay me in cash before I
delivered the goods to him.
4. That in the presence of Mr. Attorney
Buissinn^ I informed the respondent that I was
willing to give him the goods, provided he paid
the balance of my account in full, and also
indemnify me against any action Gibson might
be advised to take against me. Respondent
thereupon stated that he had oooe before given
such a guarantee to one Levin, and that he
(respondent) had lost over £200 for his trouble.
6. That respondent informed me that he was
going to place Mercer in gaol, and that he would
do the same with me. I thereupon informed
the respondent that he could act as he pleased—
bat that I would not give up my goods until the
balance was paid.
6. That I am not aware that a notice of motion
for contempt of Court was served upon James
Mercer, but as the respondent had threatened to
arrest Mercer I interested myself on Mercer's
behalf, and informed the respondent that the
snm of £60 said to be in the possession of Mer-
cer had been paid to me and not Mercer.
7. That at the time of the proceedings agoinst
him Mercer, as a friend of Gibson, had been
holding my receipt for the £50 aforesaid, and
it was through a misconception or some state-
ment made by the said Mercer that the said
Garlick made the mistake of applying for the
attachment of the said £60 as being in the hands
of Mercer.
8. That had it not been absolutely necessary
that Mercer should leave by the mail steamer on
the 1/th March last, the said Mercer could have
successfully opposed the proceedings taken
against him.
9. That the said Mercer has proceeded to
England entirely on his own business and not on
mine.
Mr. 8earle, Q.C., for the applicant, cited
ffaroombe Jf Bylandi v. Jvdeltohn^s TmHee
(4 Juta, 226) and Qnirh^t Trustees v. Assignees of
Liddle # Co, (8 Juta, 822), and contended that
if Garlick wished to take execution on these
goods he must tender payment to Irwin.
Mr. Bheil for the respondent : The question is,
under what terms did Irwin import the goods 7
If there was a suspensive condition the property
in the goods never passed. The pact in this
sale was really in the nature of lee eommissoria,
Voet (18, 8, 3).
The Chief Justice : Is not this the case where
Irwin merely acted as agent, in which case he
has his lien 7
Mr. Sheil: His remedy then is to sue for the
breach of contract.
After further argument a compromise waa
agreed to in court and judgment was then
given.
The Chief Justice said : As to the case of
Garlick v. Gibson, I think judgment must be
given for the plaintiff, and that judgment
must be with costs, including all the coats
incurred by Mr. Garlick in the motion,
because Gibson is really responsible for all these
costs. Judgment must be, therefore, lor the
plaintiff with costs, including the costs of the
application for release of the goods from attach-
ment. In the motion of Irwin v. Garlick, the
course agreed upon is the most sensible
and the most practical, vie., that the
goods attoched shall be handed over to
the respondent on payment by him to the
applicant of the balance of the price
of the goods, and the expenses con-
nected with the importation, as well as
74 per cent, on the price. Then as to
the costs of this application. It will be seen
that this course is really that which was
made by the applicant to the respondent,
and I think that the respondent ought to pay
the costs in the first instance, he subsequently
recovering the costs from Gibson.
Their lordships concurred.
[Applicant's Attorneys, Messrs. Findlay &
Tait ; Respondent's Attorneys, Messrs. Van Zyl
tc BuisBinn6.]
r 1897.
In re THE OAPB CJOLOHISATIOH J ^ ^ jgy^
OOMPANT. \MPy ist:
This was an application for an order for the
winding up of the Cape Colonisation Company
(Limited), having an office in 53, Castle-street,
on the petition of ten creditors, representing
debts to the amount of £1.972, out of a total
liability of £2,164.
Mr. Searle, Q.C., for applicant, referred to
Act 26 of 1892, section 216, sub-section 4 (rf).
The company is a limited liability one in
England— probably not so out here. Section
218 gives the Court power to stay all pro-
ceedings after the presentation of the petition
and before making the order. Section 141 stays
all other proceedings after order winding up is
made.
Pottea (May 1st).
129
Mr. MolteDo applied on behalf of the com-
Wfor an order staying: tbe proceedings in
Ration to tbe ^wrinding-up thereof on the
IK»»d that ibe directors are making guoh
•mngementB as ihey believe will result in
■rt^g the daims against the company, and
pnttnig lis afEairs on a firm basis.
Hr.fiearle, Q-C.. appeared on behalf of oer-
tuaereditors to oppose tbe application.
Mr.fiearle alao applied for the appointment
ef Vr.E. &. Syfret as official liquidator of the
■aid oompany, with xull powers under the Oom-
BWies Act, 1892, and for the sanction of the
Crnrt to the attomeya, Meesrs. Van Zyl k
teissinn^ being appointed to assist tbe said £.
&.8yfretin their professional capacity in the
perfonnanoe of bis datiea.
Mr. MoUeno: It is diilicalt to see how this
BBStler came before the Court originally ; see
•EctloDs 216 and 218, Aet 26 of 1892.
Tbe Chief Justice : It is a company which is
registered in the Colony, even though it may
be in England : therefore it is for us an unregis-
tered company, and section 2^11 of the Act
Tbe Court appointed Mr. £. B. Syfret as
pcoriaionsl liquidator, the liquidator to have
power to take charge of the assets of the com-
panj, and to sell such of the assets as he may
deezt it necessary in the i interests of the com-
pany to sell. All proceedings, however, to be
stayed until the 27th inst.
/V«>/^a (May Slat.)
Mr. Molteno, on behalf of the Cape Colon ica-
iioD Company, asked for an order staying the
proceedings institated by certain creditors for
the winding up of the affairs of the said com-
paay, on the g^round that the company will
th o ri ly be in a position to satisfy its liabilities,
aad that eertaio of the debts have been con-
tcaeted without authority.
Mr. Searle, Q.C., opposed the application.
The Court ordered proceedings to be stayed
until July 12.
[Attorneys for the company, Messif. Soanlen
4c Syf ret ; Attorneys for the applicants for liqui-
dation, Messrs. Van Zyl & Buissinn^.l
9
SUPREME COURT.
Before the Right Hon. Sir J. H. de Villibbb,
P.C, K.C.M.G. (Chief Justice), Hon. Mr.
Justice BuoHANAK, and Hon. Mr. Justice
Maasdorp.]
AOMIB8I0K.
/ 18OT.
I May 1st.
On the motion of Mr. Benjamin, Wilfred
Topham Richardson was admitted as an
attemey at law ; the oatlts to be taken before
the Chief Magistrate of Pondoland.
PROVISIONAL ROLL.
KOLLBB V. DB KOCK.
Mr. Close applied for proTisional sentence on
a promissory not« for £32 lOs.
Granted.
SHAW V. OFPBBM AN.
Provis'onal i entence — Documents — Ser-
vice of copy — Premiums of Insur-
ance.
Mr. Close applied for provisional sentence,
with interest and coRts, on a mortgage bond for
the sum of £150 ; also for Us., amount of pre-
mium paid on fire policy ; and asked that the
property be declared executable.
ProviBional sentence granted on the bond ;
property declared executable ; no order made as
to the premium claimed, there having been no
service of copies of the premium receipts.
COMBRINCK V. "OORDON OASTLB."
Mr. Benjamin applied for judgment on an
account stated, and approved of by defendant.
Granted.
*>
CCTNNINQHAM V. " GOBDON 0A8TLB.'
Mr. Graham applied for judgment on an
account for £1,680.
Granted.
If
QUnSTN V. " GOBDON CASTLE.'
Mr. Graham applied for judgment on
account for £26.
Granted,
an
180
KLINE V. LE DU.
Mr. Mftskew ftpplied for judgment on bftUnce
of ftcoount, £24.
Granted.
BBHABILITATION.
i20 PAUL PHIUPPIK DBKLBRK.
Mr. Buchanan applied for the rehablitation
of Paul Pbilippin de Klerk.— Granted.
lie A.DOhV GUSSMAN.
Mr. Benjamin applied for the rehabilitation
of Adolf GuBsman.— Granted.
Be EDWABD THOMAB PITT.
Mr. Buchanan applied for the rehabilita-
tion of Bdward Thomae Pitt.
Granted.
Be JOHAN SAlfUBL GOTTLnSB BBINBCKB.
Mr. Benjamin applied for the rehabilitation
of J. S. G. Reinecke.
Granted.
GENERAL MOTIONS.
WOODHBAD, PLANT AND CO. V. THB *' OBBOOBIO."
Mr. Rose-Innes, Q.C., applied for the attach-
ment of the Teasel Gregori to found jurisdic-
tion on a claim for the non-delivery of certain
bags of chemical manure value £28.
The Court granted the order, vessel to be re-
leased on security being given for £60.
THE PBTITION OF GBOBQB BALB.
Mr. Graham applied for leave to sue in forma
pavperu in an action against the Green Point
and Sea Point Tramway Company for the
recovery of damages for personal injuries
sustained by petitioner through the alleged
negligence of the company's servants.
The Court referred the matter to Mr. Graham
for certificate.
THB PBTITION OF JOHN A. HOLLAND.
Mr. Close applied to make absolute the rule
nUi issued under the Titles Registration and
Derelict Lands Act for authority to the
Registrar of Deeds to accept a certain contract
entered into between Frederick C. Bernard and
petitioner as sufficient authority to transfer to
ihe latter all intercRt in the landed property
bequeathed to the said Bernard as one of the
joint heirs of the estate of his late mother
Maria B. HltEeroth.
The Court grantinl the application.
IN THE MATTBB OF THB MIN0B8 SNTM AM.
Mr. Close applied for authority to the father
and natural guardian of the said minora to
join with the co-proprietors of certain undivided
shares of the farm Riet Vlei, in the district of
Oudtshoom, in selling a portion thereof aa a
business stand, the ground not being of material
value, and being incapable of sub-diTiaion
amongst the rcKistered owners.
The Court granted the application.
THE PETITION OF PIBTBB J. TBEBLAK&
Mr. McLachlan applied to make absolute the
rule nin issued by the Moesel Bay Circuit Coart
for authority to the Registrar of Deeds to cancel
certain mortgage bond passed on July S, 18( 9, by
petitioner in favour of Jan Hermanua, other-
wise ^ronje, upon portions of the farm Leeuwin
in the district of Mossel Bay, it being alleged
that the debt was discharged in 1869, and that
the bond cannot be found.
The Court granted the application.
IN THE MATTBB OF THB MINOB If AET J. STANTON.
Mr. Buchanan applied for authority to the
Master of the Supreme Court to pay over to the
tutor testamentaiy of the said minor an amount
paid to her credit in the Guardians' Fund oot of
the estate of her uncle, the late John B. Btantoa,
to enable the said tutor to complete an invest-
ment for the minor's benefit, which will produce
a more satisfactory return than the existing one<
The Court granted the application.
MAHUMA V. MAHUMA.
Mr. Close applied to make absolute the rule
wuf for dissolution of the marriage subeiating
between the parties, and for forfeiture by re-
spondent of the benefits arising from the
marriage in community of property, by reason
of her f iiilure to obey the order for restitution to
her husl land of his conjugal rights.
The Court granted the application.
THE PETITION OF BDITH K. WETNAOK.
Mr. Buchanan applied for leave to sue liy
edictal citation in ftn action af^inst plaintiff's
131
^>ted£orre«iltatioii of ood ju^al rights, failiog
*^ te divoroe b^r reason of his malicious
tettoB.
IWGwiisrmiiied tlie application; order re-
^■ttble July 12; and publication onoe in the
»*
TrnPCnXlOH OF CAnULRlKK KOYEMBBB.
Mr. Jonea applied for a rule nisi requiring
pitttioDfir's li\aband to show cauBe why she
Mi noi be admitted to aae him in forma
jwkpriimaa action for dlvoroe by reason of
\k lUefed adultery.
TbeCoQitfsraiiied the applioation.
I* re MlHOl» V18AQIIS. I jia^^^^-gf
Parent — Children — Custody — Cruelty —
Cantor.
v., who had been repeatedly cofivicted
ofaumdt^ vas after his wife's death
charged with assault with intent to do
griewms hodxly harm to his wife.
Prior to her death his wife removed
V.^s daughter to her father's honify
and the Resident Magistrate ordered
her father H. to retain the custody of
the child till after the trial. V.'s sofi,
however, remained in V.*8 custody.
On application by H.for the removal
iff the children from the control of
V. amd to be appointed curator of the
/person and property of the children,
The Court granted a rule nisi, to
operate as an interim interdict, and
am the return day made the rule
absolmte.
the return day to a rule granted on
12th March, 1897, operating meanwhile as
■a laterdlel, restraining Jacobus Hendrik Louw
^leasie from interfering with his minor
daashter Johanna Elisabeth Visagie, then in
the custody of her grandfather, and calling
the said Jacobus Hendrilc Louw Visagie to
use why the petitioner (Hendrik W.
grandfather of the minors Visagie)
not be appointed curator of the persons
•ad pr o p e rty of the minors.
The petitioner alleged that between the years
18B4 aad 1897, Jacobus H. L. Visagie, father of
the miooTS in question, had been eight times
coaHcted of more or less gross assaults, and had
fined amoants ranging up to £100l
That he had frequently and brutally ill-
treated his wife (now deoeased) and his
children, thrashtng them with a horsewhip or
anjrthing that happened to be at hand.
The petition further alleged :
That on or about the 24th August, 1896, his
said wife, petitioner's daughter, died, and that
three months subsequently to the burial of the
said Louisa Jacobs Visagie certain informa-
tion was lodged with the Resident Magistrate
of the district to the effect that the said
Jacobus Hendrik Louw Visagie had caused her
death through his ill-treatment and the body of
the said Louisa Jacoba Vieagie was thereupon
disinterred, but by reason of the length of time
which had elapsed since death, the petitioner
believes that no testimony as to the foul play
or otherwise was obtainable.
That the said Jacobus Hendrik Louw Visagie
was, however, charged with assault with
intent to do grievous bodily harm, and the pre-
paratory examination was taken before the
Resident Magistrate of Oalvinia on the 8nd
December, 1896, and the prisoner committed for
trUl.
That the said Jacobus Hendrik Louw Visagie
is at present out on bail, and is to stand his
trial on the charge mentioned in the preceding
paragraph before the Circuit Court to be held
at Malmesbury on the ISth April, 1897.
That on or about the 6th October, 1896, your
petitioner's granddaughter, the said Johanna
Elizabeth Visagie, was brought to your peti-
tioner by his daughter Elisabeth Maria du Toit,
who took said child away at her own entreaties
from said Jaoobus Hendrik Louw Visagie,
because said child had been very badly treated,
was almost destitute of clothing, and totally
neglected.
That your petitioner has since taken care of
and provided for the said child.
That the said Jacobus Hendrik Louw Visagie
has tried to take his said daughter away from
your petitioner, but as she is to be a witness in
the case pending against her father the Resi-
dent Magistiate of the district has given
your petitioner instructions to keep the said
child until the hearing of the case.
That your petitioner's said granddaughter is
in constant dread of having to return to her
father, and is afraid that he will eventually
kill her; she has been grossly ill-treated by
him in tiie past and frequently unmercifully
beaten.
That her position at times was so unbearable
that she on several occasions left her home and
roamed about the veld alone, not daring to
return home as long as her father was there.
132
That your petitioner's grandvoD, the said
Iiaak Hendrik Johannes Tisagie, is still with
his said father, but is being neither properly
clothed, fed or attended to, and besides which
he Ib also being ill-treated and castigated with
a horsewhip by his said father.
That your petitioner is emphatically of opinion
that the said Jacobus Hendrili Louw Visagie is
not a fit and proper person to have the custody
of his children, and that not only would it be
prejudicial to the welfare of the said children to
remain with him, but that it would be positively
dangerous for them to do so.
That your petitioner is williug and ready to
take charge of the said children, and maintain
and educate them as if they were his orrn
children.
The petitioner prayed for an order depriving
the said Jacobus Hendrik Louw Visagie of all
prrental or other authority over his said children,
and appointing the petitioner curator of their
persona and property.
Among other affidavits was one by John
Cowper Stapleton, Resident Magistrate of Cal-
vfaiia, as follows :
1. That I am acquainted with Jacobus Hen-
drik Louw Visagie, of this district, and know
him to be of a most brutal and cruel disposition ;
several instances of his cruelty to his wife and
children as well as to other persons have been
reported to me, and I am strongly of opinion
that it is desirable that his children should be
removed from his custody as I consider that he
abuses his parental authority, and is not a fit
and proper person to be entrusted with their
custody.
2. That £ am also acquainted with above*
named petitioner and consider him a fit and
proper person to be appointed guardian of his
grandchildren, Johanna Blizabeth Visagie and
laaak Hendrik Johannes Visagie, and that it
would be to the welfare of the said children that
he should be so appointed.
Mr. Ward moved that the rule be made abso-
lute.
Respondent appeared in person, and said he
wished the custody of the children to be given
to his brothers, who were richer than their grand-
father, and were able to give them a better
edncation.
Bismarck von MoUke Louw said that
respondent's brother Philip was said to be a
man fairly well ofE, and of fair reputation.
The Court made the rule absolute, with leave
to respondent to apply for a change of the
curator.
I Applicant's Attorney, V. A. van der Byl]
HINTON V. HIKTOM.
Mr. J. Bose-Innes, Q.C., applied for leave on
behalf of petitioner to tue by ediotal citation her
husband for restitution of conjugal rights, fail-
ing which for divorce, by reason of bis maUcions
desertion, and for forfeiture by him of any
benefits arising from the marriage between
them. The respODdent is in Bulawayo.
The Chief Justice said: There is suflicient
proof that the parties came out here intending
to reside in the Colony ; what chaoged their
intention does not appear. There most be
personal service under the circumstances. The
Court will grant leave to sue by edictal citation,
service to be personal, and the order to be
returnable on J une 12, with special leave for
trial on that day.
[Applicant's Attomeyfi>, Messrs. Van Zyl ic
Buissinn^].
i 1S97
THACKKR V. POUKIK. | May Ist.
Summons — Previous costs - Security —
Foreijfiier.
P. sued T. in the Circuit Court,
Worcester, for damages /or malicious
arrest^ and lost the suit with costs.
Thereafter P. took out a summons
against T. in an action for damages,
alleging that T. had caused judg-
ment to he given against P. hy false
representations ,
T. applied to the Supreme Court to
order P. to pay the costs of the pre-
vious action before being allowed to
proceed with the pending suit ; and
also to order P. to find security as a
foreigner.
The Court ordered the costs of the
previous action to be paid before the
pending suit teas further proceeded
with.
This was an application on notice of motion
by Thomas J. Thacker calling upon Louis J. J.
Fourie, the respondent, to show cause :
1. Why he should not be ordered to pay the
taxed costs of £90 9s. 8d. awarded to the
detendant, now applicant (in a suit heard at the
Worcester Circuit Court on 7th October, 1896),
before the respondent should be permitted to
prosecute any suit based on the summons sued
out by him against the appellant in the Supreme
Court on 12th April, 1897 ; also
133
2. Why the said respondent Hhoiild not be
urdered to find due security for the payment of
oeh costs and judgment as the Supreme Court
m^y gi^e the applicant in the suit on the said
sommons.
The applicant's athdavit tiet forth that Fourie
W16 chai^ged at Worcester with contravening
action 2 Act, 35 of 1894, and wab convicted and
fined.
That Kourie aftpealed in October, 1S96,
igaiotft this judgment to the Circuit Court and
loit the appeal.
That at the same Circuit Court in October,
18%, Fourie sued applicant for damages for
MMuItand malicious arrest; that judgment was
given against Fourie with costs, which after
taxation amounted to £t)0 9s. 8d.
That Fourie had endeavoured to induce the
aathorities to charge applicant with the crime
of perjury but without succei^s.
That on 26th Jauuary, Fourie took out a
ftummons against applicant by way of private
prosecution for perjury ; that the praceedingn
were converted into a preliminary examination,
at which applicant was admitted to bail in the
■umof £10.
That the Attorney-General declined to prose-
cute, and that the Chief Justice declined, on
application made, to grant an order for
recommittal of respoudent to prison.
That the applicant has now been made a de-
fendant in an action instituted by the respondent
for £1,001) damages, alleged to have been
Nistained by the respondent through false
representations by the applicant at the suit in
October, 18:6.
That respondent has not paid the taxed costs of
the applicant in the ^mt^Foitrie v, Thacker though
called upon to do so, and that applicant verily be-
lieves he has no landed property in the Colony.
That as regards the said suit the respondent
i» a foreigner, he having alleg d at the Worces-
ter Circuit Court that he had simply come to
the Colony from the Free State to buy tobacco
and return.
The respondent in his answering aflidavit
allied that he was bom in Caledon in 1871,
and lived in the Colony till 1895, when he went
to^the Free State ; that in June, 1896, be left the
Free State with the intention to return to the
Colony.
That one Pretorius had asked respoudent to
buy some tobacco for him, and that deponent
purposed to take this tobacco back to the Free
State, and then to return to the Colony.
That he was prevented from doing this by the
legal proceedings at Worcester, and that there-
after he came to Cape Town, and settled here
after obtftining employment, and that he is
still residing in Cape Town and that it is his
present intention to remain in the Colony and
settle here, where his relations are.
Mr.hiohreiner, Q.C., for the applicant: Fourie has
been a resident of the Free State ; we leave the
question of domicile to the Court. But the costs
of the previous proceeding must be paid before
this action can be heard; the summons which
has been taken out is a summons for perjury in
the previous civil action which was for
damages for assault. This action is clearly a
case of trying by a roundabout way to get an
appeal from the judgment of the Circuit Court
after having allowed the time for appeal to
pass. The present application is in accordance
with all the practice of the Court to endeavour
to put a stop to interminable proceeding.
Mr. Inncs, Q.C. (with him Mr. Searlo, Q.C.),
for the respoudent: It may be very equitable
that where A. and B. litigate and A. loses, he
must pay the costs of the case before he again
sues B. But is it law I For the doctrine only
has bccu laid down in cases where the tubec-
quent catiie wtu the ^amo as before, not where
the cases are diilerent, except perhaps in suits in
forma pan per h, iToUlman v. (rlass (5 Juta, 76) ;
David V. Ahdol Ilajiep (Buch. 77, page 81).
Toe Chief Justice : Would not the same evi-
dence be required in this case as in the
previous one .'
Mr. Innes: Very much the same undoubtedly.
But the cause of action is ditfereut.
The Chief Justice: The measure of damages
is the same »
Mr. Innes : No. The perjury caused us to
lose our right under that action to recover
damages, wo were also cast in costs— so that
our damages are increased. But the real test is
the ''cause of action."
The Chief Justice: Would you say we have
no power to order security to be given ?
Mr. Innes : No — but in cases like this it
would be most unusual. Clearly if the per-
jury caused a wrong judgment to be given the
person injured can get damages. The cause of
action in the first case was anterior to that
case ; the oaui^e of action in the pending case
arose only out of the last case, it arose after the
judgment.
The first part of the application was granted
with costs.
The Chief Justice said: An action was
brought by Fourie against Thacker in the
Worcester Circuit Court for malicious prosecu-
tion, and the plaintiff in that case failed, judg-
ment being given against him with cost«. Then
the plaintiff took proceedings in a criminal
prosecution against Thacker for perjury. The
Attorney-General refused to prosecute. Then
134
the plftintiff decided to iiistitote a privste prose-
cution, and before that could be brought to the
Supreme Court the consent of a judge was re-
quired, and an application was made. I, being the
judge of the week, after consulting with my
brother judge, who had heard the previous
case on circuit and was acquainted
with the facts, decided that the criminal
proceedings should be put an end to,
anH accordingly did not grant the leave asked
for. Now the plalntifl is bringing a civil action
against Thacker. The question is, should that
action proceed until the plaintiff has paid his
costs in the previous action. In the present case
the two actions are so closely connected that I
think the Court ought not to allow the plaintiff
to proceed with this new action until he has
paid the cost incurred by the defendant
Thacker in the action for malicious prosecution.
The Court has some sympathy for the plaintiff,
but Thacker has been put. to an expense of £93.
and he, a police sergeant or in some such posi-
tion, may also be a poor man. I think it is onl^
ri ght that before another action i s broughtfe
lould be recouped hU MBUbFESve security for
those costs.
Their lordships concurred.
[Applicant's Attorneys, Messrs. Walker k
Jacobsohn ; Respondent's Attorney, D. Tennant,
jun.]
SUPREME COURT,
Before the Right Hon. Sir J. H. DK Villikbs,
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice BUCHANAN, and Hon. Mr. Justice
Maasdobf.
1897.
May Srd.
DtJ TOIT AND 0THKB8 V. DOMINGO. ^ „ 4th.
12til«
3] St.
n
Mohammedan Congregation— Imaum.
There is tto established rule that an
Imaum once appointed for a congre-
gation is entitled to retain his office
for life.
In the absence of any express or tacit
contract made by an Imaum^ befm-e
or at the time of his appointment, with
*c office-bearers or the members of
the congregation ^ that he is to hold
the office for life or during good
behaviour ^ it is competent for a clearly
ascertained majority of the boua fide
members of the congregation to dis-
pense with his services after due
notice to him.
This was an action brought by Imaum JDu
Toit and others (office-bearers and memt>er8 of
the mosque at the Paarl) against Hadje Habil
Domingo, in his capacity as acting imaum of
the mo«que, to obtain an order declaring defen-
dant not entitled to continue to act as imaum.
The plaintiff's declaration alleged : —
1. Plaintiffs are members of the Mahommedan
oongregation belonging to the mosque at the
Paarl: the first-named plaintiff is the duly
appointed Imaum— the other plaintiffs are office-
bearers (to wit, gatiep, belals and marabouts)
of the said congregation : the defendant has
been acting as imaum undercumstances, herein-
after set forth.
2. In or about 1889 the defendant waa
appointed temporarily to act as imaum of the
said mosque pending the appointment of a
permanent imaum to be thereafter elected by
the congregation of the said mosque.
3. Thereafter the defendant officiated as actin^^
imaum of the said mosque but in ooneequenoe of
disputes having arisen, ani. the majority of the
congregation of the said mosque being dissatis-
fied with defendant on account of his incom-
petency and misconduct, a meeting of the said
congregation was called at the Paarl on or about
February 6, 1897, for the purpose of electing a
permanent imaiim.
i. The said meeting was convened by the
gatiep, belal, and marabouts of the said mosque
in consequence of the defendant refusing to con-
vene such meeting ; due notice of the said meet-
ing and of its objects was given to the defendant
and to all members of the congregation, and the
same were invited to attend.
o. At the said meeting of the congregation,
resolutions were passed to the effect (a) that as
the congregation was dissatisfied with the acts
of defendant and considered him incompetent
to perform the functions of imaum, he was
deposed from his position of acting imaum ; Qby
that the first-named plaintiff was elected per-
manent imaum.
6. The said resolutions were duly communi-
cated to the defendant, and the defendant was
called upon to deliver up the keys and papers
belonging to the said mosque to the first-named
plaintiff, but the defendant refused to recognise
the said resolutions in any manner.
1S6
7. Th« defendant has never been duly
appointed to the permanent poet of imaum of
the Mid mosque ; he ib incompetent to perform
the fanctions of imaum, and the large majority
of the coni^regatioii are dissatisiied with hie
conduct and preaching, and object to his oon-
timiing to exceroise any longer any of the func-
tions of an imaum of the said mosque, and have
appointed the first-named plaintiff as imaum.
The plaintiffs claim :
(a) An order declaring that defendant is no
longer entitled to exercise or perform any func-
tions of imaum in the said mosque for and on
behalf of the said congregation, and an inter-
dict reetraininic him from so doing.
(h) An order declaring that the first-named
plaintiff haa been duly appointed imaum of
the said mosque.
(«) An order upon defendant to deliver up to
the first named plaintiff the keys belonging to
said moEque.
(d) Alternative relief ; and costs of suit.
For a idea to the declaration the defendant
said as follows :
1. As to the first paragraph he denies that the
flrst-named plaintiff is tiie duly appointed
imaum of the said congregation, or that he
(defendant) is merely an acting imaum, and he
tays that the second, third, fourth, fifth, sixth
and seventh plaintiffs were duly appointed to be
officer tiearers of the said congregation by the
defendant himsell
2. Ab to the second paragraph he says that in
or about the year 1889 he was duly and legally
elected and appointed to be the permanent
Imaum of the Faid moeqoe ; from the said date
be has continued to act as such Imaum, and he
is entitled, according to law, to continue so to
act and ofiiciate ; subject to the above, he denies
tiie allocations in the said paragraph.
3. As to the third paragraph, he admits that
disputes arose with the plaintiffs and certain
other members of the congregation, and he
admits that the plaintiffs or some of them
purported to call a meeting at the Paarl on the
date and for the purpose alleged, but he denies
all the other allegations iu the said paragraph,
and he specially denies that the said meeting
was legally and properly called.
i. With regard to the fourth and fifth para-
graphs of the said declaration, he refers this
Honourable Court to such proof of the allegations
therein contained as the plaintiffs may produce.
He also refers this Honourable Court to the
ipeoial allegations in the third paragraph hereof,
and he says that the said meeting was illegal
and void, and that the said resolutions even if
parried thereat lire not binding upon him.
5. He admits the allegations in the sixth
paragraph of the declaration, and he denies all
the allegations in the seventh paragraph. He
says that having been duly elected and appointed
as permanent imaum heis by law entitled to con-
tinue to officiate as such, and has been guilty of
no misconduct which would entitle the plaintiff
or any other person or persons to dismiss him
from his said office.
Wherefore he prayed that the plaintiffs'
claim might be dismissed with costs.
For a claim in reconvention the said defen-
dant in convention, now plaintiff in reconven-
tion, said :
1. He asks leave to refer this Honourable
Court to the matters set forth in the plea In
convention.
2. The first-named plaintiff (now defendant
in reconvention) had, until recently, been
acting as secretary of the said congregation,
and as such liad obtained possession in his
official capacity of the muster roll or list of
members of the said congregation.
3. Thereafter the plaintiff in reconvent'on, as
he had a right to do as imaum, deposed the
defendant in reconvention from his position as
secretary aforesaid.
4. It became and was the duty of the said
defendant in reconvention to deliver up to the
plaintiff in reconvention the said muster roll or
list of members, yet the defendant refuses to do
so, and unlawfully retains possession of the
same.
The plaintiff ii reconvention claimed :
(a) An order directing the said defendant,
Hadje Keamdien du Toit, to deliver to the
plaintiff in reconvention, forthwith, the said
muster roll or list of members of the congrega-
tion.
(I) Alternative relief, and costs.
Replication. 1. The 2nd, 3rd, 4th,5th. 6th and
7th plaintiffs were appointed, and hold office
with and subject to the consent and approval of
the congregation; subject to the above, they
admit that the said appointments were made
by the defendant.
Otherwise the replication was general.
For a plea to the claim in reconvention. The
plaintiffs (now defendants in reconvention^
said :
1. The first-named defendant in reconvention
is the secretary of the said congregation, duly
appointed by the whole congregation, and in
such capacity has possession of the muster roll
or list of members thereof.
2. In or about December, 1896, the plaintiff in
reconvention wrongfully and unlawfully
attempted to depose the first-named defendant
in reconvention from his said office of secretary
186
3. The defendantfi in reconvention submit that
any appointment of a secretary in place of the
first-named defendant mustbe made by the whole
congregation; no such appointment has yet been
made, and until such appointment the said
defendant is entitled to retain possession of the
said must«r roll, and they admit that be refuses
to deliver the same to the plaintiff in reconven-
tion, but deny that he has ever been reiiuested to
deliver the said roll.
Otherwise the plea in reconvention was gene-
ral, craved leave to refer to the matters net forth
in declaration and replication in convention,
and found joined on the claim in reconvention.
The defendant's rejoinder in convention was
general, as also was the replication iu recon-
vention.
On these pleadings issue was joined.
Mr. Searle, Q.C., (with him Mr. McGregor),
for the plaintiff; Mr. Innes, Q.C. (with him
Mr. Graham), for t^he defence.
Jakoef du Toit said he resided at the Paarl.
He was one of the plaintiffs, and had been a
member of the congregation forty- even years.
He was now gatiep, and regularly attended the
services. Witness built the church, and
advanced the money for the work. Witness did
not charge anything for his own services.
There was a sum of £74 now due to him. He
had never charged any interest for the money.
He had a mortgage on the building. Witness
oontributad money to the building of the
mosque, which was completed about the middle
of 1888. After the opening ceremony there was
a banquet provided, which the bishop and
the talief, who had come from Cape Town,
attended. In the course of conversation after
the banquet the defendant was mentioned as
the imaum, and it was understood he would
remain imaum until the debt on the church was
cleared off. DissutisfactioD had been founi
with the defendant, and there was a dispute
with him as to how he conducted the services.
That was at the end of last year. A hadje,
(Sahedi) was sent for from Cape Town
on one occas!on, and he said that defendant had
made a mistake in reading the buddj. The
defendant used the correct word, but on read-
ing further the hadje said he was again wrong.
Lat-er a beggar, or pilgrim, appeared at the
Paarl, begging for money to take him back to
his own country. The people did not know any-
thing about the man, but the defendant made
him conduct the servicer. Defendant was not
in any way competent to conduct services. He
could not pronounce the Arabic properly.
The Chief Justice : Can you pronounce the
Arabic properly ?
Witness: No,
The Chief Justice : Well, how can you tell
whether he pronounces it correctly or not ?
Witness replied that " another man," who
knew Arabic well, had said so.
The Chief Justice : We'll have to get the other
man then.
Witness stated that the defendant had created
dissatisfaction owing to the manner in which
he had conducted the baptisms. The notico of
the meeting held in his house was published in
" Het Dagblad." Defendant had the key of the
mosque and would not unlock the door. There
were over thirty persons at the meeting. At
that meeting a resolution was pas^sed deposing
the defendant as imaum, on account of his not
being able to conduct the Fervices properly. A
resolution was also passed electing the son of
witness imaum. His son had been to Mecca.
Witness had attended the church recently ; since
the defendant had been acting as imaum the
congregation had decreased. Sometimes there
were only five persons present, and sometimes
the defendant wan present in the church by
liimeelf. There were only twelve to twenty who
were satisfied with the defendant. Over thirty
were dissatified with him. Defendant had
never been paid anything for his services. The
majority of the congregation was now willing:
that there should be another meeting to elect an
imaum.
GroM-examined : Witness's son was twenty-aix
years of age. Defendant taught his son a little
before the latter went to Mecca. His son had
been back from Mecca about three years. There
were seven trustees of the title deed, two were
dead, and two others were elected. The
majority of four trustees were on the plaintiff's
side. In 1889, when the mosque was built, two
bishops came down from Cape Town, one of
whom was dead. The other was in court.
About fifteen of the congregation attended a
feast which was held on that occasion. The
feast was arranged so as to give the bishops a
proper welcome. Witness could not read the
Koran. Nothing was said at the feast as to
the appointment of an imaum. The bishop asked
deifendant if he would accept the appointment
of imaum, and defendant said he would take
the ofhce until a more competent man was
found.
Hadje Sahedi Dolly said he was a professor of
reading in the Koran, which he taught in Cape
Town now. Witness was at Paarl about the end
of last year, and attended services at the mosque
there, which the defendant conducted. Witness
heard the defendant pray. The prayer was very
bad. It was wrong, and defendant made many
mistakes. That was the first time witness
heard the defendant. Defendant said
r
137
^IimiUAh " ioBtead of " BUmiiUh." It was
tbedotjof an iimnim to read oorrectly. He
bad iMTer heard an imaum in Cape Town to bad
ti defendant.
Croes-ezamined : Witaees taught the plaintiff
fur seTeral mooths before the dispute began.
Witoeaa oondemned the defendant because he
did not prononnoe the word ** filBmillah " pro-
perty.
Hollah Kffendi said he was the secon i son of
Um Sffendi, who oame to Gape Town thirty
jears a^o. Witness had studied Mahommedan
theology at Cairo and Constantinople, and had
been six years at Mecca. He was thoroughly
sequainted with the Koran. He had heard the
defiendani oondnot a service. Defendant was
inoompetent to be imaum according to their
religion. Defendant changed the meaning of
what he read altogether ; in f»ioi there was no
meaning at all to what defendant read. The
majority of a congregation can appoint or dis-
miss an imanm at any time. It was a sin for
an imanm to go and preach if he was disliked
by a congregation.
Cross-examined : Tn Mahommedan countries
Mioh as Tarkey the Oovemment could dismiss
or elect an imaum. The laws in Cape Town
had grown up in the Colony. He had not much
knowledge of the mosques in Cape Town. He
had not attended a church in Cape Town for
many months, as tke priests, as a rule were in-
oompetentk Witness thought the defendant
pronounced ** fiismillah " right. If a man was
appointed acting imaum the power of the
oongiegation to dismiss was the same. In
Mahommedan countries it was a State religion,
whilst in Cape Town it was a voluntary religion.
Abdol Qamiet said that he lived at the Paarl,
and had been a member of the congregation
there eighteen years. He was marabout and
leztoa. He contributed to the building of the
mosque, and paid for his sitting. Witness
rBmembered the ceremony of the opening of the
church. After the ceremony there was a feast,
St whioh about twelve persons were present. He
corroborated the evidence given by the plaintiff
Jakoef du Toit. Defendant was never appointed
to be the permanent imanm of the church.
There was no meeting of the congregation to
appoint an imaum.
Cross examined by Mr. Oraham : More than
half of the congregation were piesent at the
meeting in the church. Only ten or twelve were
p'ssent at the feast which followed. Nine or
tsn came from Wellington to the church meet-
ing. He thought there were twenty-two from
the Paarl. All Mahommedans of Wellington
sad the Paarl were entitled to vote if they had
oontributod something. Witness collected the
T
money, and a book was kept in which the
amounts received were written. Witness was
against defendant because he caught witness by
the neck and put him out of the mosque.
Defendant also left the mosque when he ought
to have preached. Before that witness was
always with the defendant. Other people put
witnessout,but the defendant stood by at the
doer whilst it was being done. Defendant was
only a temporary imaum. There were two other
assistants who helped according to custom. All
three were appointed at the meeting to officiate
at the church. Defendant was appointed acting
imaum, and the other two to assist him.
Bey. Stephanus Jacobus du Toit said he re-
sided at the PaarL He knew the parties to the
disputes. Jakoef du Toit with others came to
see witness for advice, as also did the defendant.
W itness advised friendly arbitration,and this was
at first agreed to. The arbitration, however, fell
through, the defendant saying he did not think
it right that UhrUtians should arbitrate Wit-
ness was present at a meeting at which about
thirty were present, Mr. Cloete, B.M., and wit-
ness were mentioned as arbitrators.
Cross-examined : So far as witness knew the
defendant was the imaum, and any outsider
would look upon him as imaum.
Johannes. Enoch Neethling, attorney, who
lived at the Paarl up to February last, said he
knew the parties. Witness had suggested
arbitration to settle the disputes, but this fell
through. Defendant afterwards said he would
go on with the case ; if the plaintiff was pre-
pared to throw money away, so was he.
Cross-examined: Witness had lived in the
Paarl six years. Defendant was always looked
upon as imaum by the congregation.
Masouda, a member of the congregation, said
he was a marabout, and had been since the
appointment of the first imaum. Witness was
not at the feast. Bedat and Kiandien Domingo
used to conduct services in addition to the de-
fendant Witness was present when mistakes
in reading were pointed out to the defendant.
Cross-examined: Although the defendant
was not appointed imaum he was recognised in
the church as imaum, but not outside.
Bejab Smit, a member of the congregation fo^
twenty -one years past, said he paid for his seat
at the church. Witness was present at the
opening ceremony in 1889. He did not go to the
feast, and was not present at any meeting
at* which defendant was appointed imaum.
Witness knew that there was great dissatisfac-
tion amongst the congregation against the de-
fendant. Witness thought a competent man
ought to be appointed.
138
CroBB-examined : binoe the dispute arose wit-
ncae had not attended Bervicee in the moeque.
He bad, however, paid money towards the sup-
port of the mosque. Witness had never heard
of anybody being appointed imaum at the
feast
Abdol Gatap, one of the belals, remembered
the building of the mosque. Witness was pre-
sent at the opening ceremony, and went to the
feast. Defendant was never appointed imaum
of the ohuroh, but acted as imaum. His work,
however, was not good. He thought there were
about thirty-four members of the congregation
againut the defendant. At preseut there was
but a small attendance at the mosque.
Cross- examined: About thirty weie present at
the opening of the mosque and about twelve at
the feast. They made three acting- imaums at
the feast. Defendant was called imaum accord-
ing to custom. Defendant was not up to his
work.
Manie Bohearie gave corroborative evidence.
Kiandien du loit (son of Jakoef du Toit and
one of the plain tiifs) said that six years ago he
was secretary to the mosque. Witness kept the
two boolu produced. The congregation ap-
pointed him secretary. The names of members
who had paid subsciptons were in the books.
Witness was present at the opening of the
church and at the feast held afterwards. What
previous witnesses had stated as to what took
place at that time was correct. Defendant was
never appointed permanent imaum. Witness
had got a certificate from Mecca.
Cross-examined : Witness was twenty-six
years of age. Witness went to Mecca when he
was twenty-two years old. Defendant taught
witness the first chapter of the Koran, and the
schoolmaster at Mecca had said witness had
been taught well. Witness stayed four or
five months in Mecca. Defendant was not a
truthful man.
Postea cMay •1th),
(BEFOBE THE FULL BENCH.)
D. F. Berrange, attorney of the Supreme
Court, acting for the plaintiff, said he attended
certain meetings in connection with the mosque
at the Paarl. i he list produced contained the
names of the thirty-four persons present at a
meeting. There were eome Indians present,
but they did not vote.
Cross-examined : Each person present was
asked if he were a member of the moeque, and
the reply in each case was in the aflirmative.
Witness had no roll by which to check the
members. There might have been one person
only about fifteen years of age.
Taliep Samardien, an imaum in Cape Town,
now retired, said witness knew the defendant,
and heard him preach about three years ago.
Witnesii had heard defendant read. He could
not read the Koran well. Witness heard him
make important mistakes. The majority of a
congregation had the right to diamise an
imaum, and he knew of a case in Cape Town.
Cross-examined: Witness went to the Paarl
three years ago, but did not go specially to
hear defendant preach. Defendant could not
pronounce Bismillah probably. According to
the Prophet, a man who made mistakes like
that WAS not fit to bean imaum.
Imaum Hadje Ibraham Abdol Gall said an
imaum was appointed in the mosque in the faoe
of the congregation. That was how he was ap-
pointed. If there was any objection it should
be made at the meeting of the congregation.
The congregation had the power to depose an
imaum if there were good grounds for their
objection. Witness heard the defendant preach
about four years ago. Defendant made serious
mistakes in the conduct of the serrioe. There was
no law in the Colony as there was in a Mabom-
medan country. AH the congregation could do
here was to express their dissatisfaction.
Cross-examined : Witness used to line at the
Paarl, but he left because one of his relatives
died in Cape Town. When he was made imaum
there were about sixty in the congregation. It
was not proper for an imaum, nor for a man
who wished to be made an imaum, to be made
captain of a ladies* singing club.
Abdol Ragiem, member of the congregation at
the Paarl, said he was a marabout elected by
the congregation. He corroborated the evidence
of previous witnesses as to the conduct of the
defendant in roughly pushing away some of the
members of the congregation.
Kiandien du Toit (recalled) stated that the
photograph produced represented him amongst
others. The picture was taken two yeais ago.
At that time he was captain of a feast club.
Witness was not the only imaum th%t was
photographed. (The photograph represented
the witnes<< in the centre of a group of Malay
girls.) Witness was not imaum at the time the
photograph was taken.
This closed The plaintiffs* evidence.
For the defence,
Ab iol Uagman said he was a belal of the con-
gregation, and had belonged to the church about
nineteen years. The defendant 'had carried on
the services as imaum. Imaum Ibrahim re-
signed because he said the congregation was
not large enough. After the resignation de-
fendant and two others conducted the services ;
but defendant always took the leading park
189
Am were two bisliope f>re0eiit at the opening
•fUMnoeqiie. One o€ tliem — the Indian bishop
-vunow dead. After tkie oeremooy there was
tietflt It the defenclaknt's L.ou6e. Witness, as
Mnboat, annoaocecl tl&e feast This was
€0 the iDstmetion of tlie truetee. There were
•boot forty-five or fifty people present at the
but The w^iole oon-gresation said they «ere
■tisfied that defend&nt sbould be elected
iaaui, and defendant aoeepted the ofiice.
Dcfieadant was formally declared to be elected
huinii. From tliat time defendant con-
dnafced the aerrioee, and inraB recognised as the
head of the ooogTefcation. Defendant told the
eonsT gation that if tbe3' .broke the Mahom-
laedaa law by not attending at chnrch at stated
times he wonid refuse to greet them. Tlie
IMople were annoyed at this. Witness found no
fault with defendant's pronunciation of the
Witness attended ser-
heforethe moaqne was built. That was
when they were held in a hired house. Witness
waa aot present when Ibrahim was appointed
i^fianm. The brother of defendant had oon-
dncted seryioea twice, but this was only on the
iBrtractlonB received from the defendant. Wit-
there was a considerable debt on the
Jakoef du Toit received £75 subvcrip-
frotn a little club that was formed, then
built the whole church. It was not said at
feast, ^' We can't appoint an imaum yet
there is such a big debt on the church."
The whcle congregation of the Paarl waH about
fifty or sixty.
lined : There was a difference between
Friday aervice and those held on other days.
On the Friday the imaum must read the
Imamn Mohammed Talliep, bibhop, said he
in Mauritiua and also in
He had been a bishop twenty-
four years. He knew the congregation at the
P)aarL He went down to the Paarl on
the €»pening of the mosque. This was on the
inwttation of the defendanf and his brother.
Wit n CMS wenc» and after the ceremony all the
eoosr^ation were invited to the feast. There
were about fifty at the mosque, and they all
vent to the hooae. Bedat spoke to witness, and
•aid they most ar^t an imaum. Witness asked
if tbey had anyone who was fit to be imaum.
Bedat replied that they had got a man who had
eottdncted the boainess for three years, and who
was fit to be imaanL. Then witness asked the
people if they consented to defendant being
tmaaai* and they all shouted. "Yes; we like
hi0," Defendant aooepted the office. The
Anh Bishop 0»«**i*» ^^^ ^^^ dea^d, said
** Make him an imaum." Then defendant was
formally made imaum, and was congratu-
lated by all the congregation. Witness had
been to the Paarl several times, and always
found defendant acting as imaum and the
people satisfied. Defendant read Arabic cor-
rectly. (Witness here repeated a prayer in
Arabic, and said defendant was competent to
give that prayer, and also said that the school-
children could say it as well as he could.) The
people had to go to church, or say their prayers,
five times a day. otherwise their evidence would
not be taken. It was laid down that the imaum
was not to greet people who did not attend
church and say their prayers regularly. The
congregation could not turn an imaum away
unless he had done something wrong.
0ros8«examined : The imaum appointed the
gatieps and belals. The learned people— trustees
—appointed the imaum, and they could do so ;
but generally the congregation agreed with the
man named. Witneps never heard that there
was a debt on the churchy There was no law
compelling th« imaum to shake hands with all
the congregation. Witness wap imaum at the
Indian mo«que, where about 20() Indians and
fifty Malays attended as congregation, He got
about £20 a month and presents.
Habil Gamadien, belal of the church, said he
was appointed belal by the defendant. He was
at the church when Ibrahim was imaum. He
was bom at the Paarl. Before there was an
imaum defendant conducted the services. He
remembered the opening ceremony and the
election of defendant as imaum. Witness was
satisfied that defendant could properly conduct
the services. There were between fifty and sixty
in the congregation. Defendant now had be-
tween thirty and forty in his congregation.
Plaintiff had some, but they were principally
outsiders.
Cross-examined: Witness never heard any-
thing said as to the church being in debt. De-
fendant always used to conduct the services
with the exception of two or three times. Several
people used to read the prayers.
Mahomet Samadien, marabout at the church,
said he was born at the Paarl, and had been a
member of the congregation many years. He
corroborated the evidence of Abdol Ragman.
Abdol Bazier, gatiep at the Paarl, said he was
a marabout at the time of the opening ceremony.
He corroborated the evidence of Abdol Bagman.
Abdol Latief snid he was one of the trustees
when the transfer of the land on which the
church was built was passed. He was not one
of the original trustees, but he was elected by the
congregation. There were about fifty peole
present at the feast. He was perfectly satisfied
140
with the defendant, and corroborated generallj
the eyidence of preceding witneeBes for the
defence.
Keyandien Domingo, brother of the defen-
dant, said he owned properiy at the Paarl. He
waBone of the original truateieB. He wae a
gatiep, and was the man who fetched the bishop.
£e corroborated the evidence of Abdol Bagman.
His brother was properly appointed imanm.
WitneBS had only officiated in the pulpit two or
three timee. Hik brother always officiated.
Ibrahim Anta Moordien Gamalien. Abdol
Gakiem, Uaidien Mahati Samodien, Bmaldien
Jamaldien, Abdol Kariem, Osman Gamat, and
Gamal Bahedien also gave oorroboratiTe eri-
dence.
Habil Domingo, the derendant, said that
after Ibrahim left he (witnesB) and two others
took OTcr the work of the church. WitncBS was
one of the truBteee under the original deed.
There were three tables at the feast, but some
had to stand. He had heard what had been
Baid by previous witnesses as (o the appointment
of himself as imaum, and, this was all correct.
Witness had performed all the duties of imaum,
could read the Koran properly, and had been in
Mecca two years. It was true that witneBs had
scolded the people for not coming to church,
and told them they only came when there was a
feast Subsequently he refused to greet some
of the congregation who did not make proper
attendance at church. Witneas read the Koran
better now than he did eight years ago.
CroBB-examined : The brother of witnesB as-
Bisted with the service, but had only been two or
three times in the pulpit. He was not paid.
He had enough to live upon. Sometimes he
got present when there were marriages. The
reason he had come there was for their
lordships to decide what was his right duty,
but he did not see why he should be rejected
without sufficient reason. About twenty people
came to church now. There were between forty
and fifty altogether. « He thought he had a
majority of the actuj^ members of the church. '
Pottea (May 12thi)
Mr. Searle, Q.C. : The question in this ease is
whether the congregation has a right to manage
its own affairs. The three grounds on which
plaintiff asks for relief are, rim. : (1 ) Defendant
was never properly appointed ; (2) he is not a
competent man for the post ; (3) the majority
of the congregation are not satisfied with him.
As to the first ground, the congregation were
never called together in the moeque, which is
the usual practice. Defendant has never received
any remuneration for his servioee, and he con-
tributes to the church funds like any other
member of the congregation ; this is inconsistent
with the position of imaum. Moreorer, daring
the last year other members of the con£r«>gation
occasionally conducted the services ; this abows
that the appointment was informal. There waa
not a sufficient number of the congregation
present at the feast. As to the argument thai
the trustees are the persons to manage thi«
matter, that is the Indian idea, but it wa^ set
aside by the Court in the case of He$$en v JDaottt
(6 JuU, p. 872). Plaintiff's position is that he
paid for the building of the church ; part of the
amount has been paid off by the congregation
and he has taken a bond for the balance. ThiB
he is willing to cancel if a person satisfactory
to the congregation is appointed imaum. As to
the competency of defendant, the congregation
has been diminishing gradually for some time
on this account ; he makes a number of miatakes
in offering prayer and when learned men came
to criticise his method he pushed forward another
man to conduct the service. According to the
Muschat prayers are valueless if not properly
pronounced. A large part of the congregation
has left the mosque and taken a house. By the
rules of the mosque the iroaum mu«t be chosen
by the congregation and approved by the Gama.
A' majority can dismiss without c<»use shown :
Meuen v. Vaottt Judgment in that case was
founded on principles laid down in Cooper v.
Gordon (38 L.J., Ch., p. 4P9). Defendant is not
elected for life ; that view is contrary to all
decisions of this Court; the only authority for
it is judgment of Bell, J. in Jan v. Itmael
(S. 6, p. 102). Watermeyer J. did not agree.
Mu$ehat'Vl'Ma$dbah (Ch. 27, part 1). In
Berhardien v. IntiUah (6 Sh. p. 47), the Court
ordered an election to be held.
Mr. Innes, Q.C, for the defendant : The imaum
is appointed for life and can only be dismissed
for good cause. Judgment of Bell J., in Jan v.
Ismael. In making a selection, great weight
should be given to wishes of deceased imaum :
Berhardien v. IntiUah (4 Sh., p. 47) ; under-
lying that dldvin is the principle of the perma-
nency of the office.
Trustees have the right of dismissal, acting in
accordance with the wishee of the congregation
? (Ho son V. Daout). There is no such office as
that of acting imaum except when there is a
permanent Imaum who is temporarily disabled
from officiating. There could not be an acting
imaum for eight years. Th'ere is no difference
between defendant's appointment and that of
a permanent imaum. He was always known as
the imaum.
De Villiers, C. J. : The real qucBtion is whether
there is no limit as to the numbers of the con-
gregation. Supposing it were reduced to one
must the imaum be left with that one ? It r»-
r
141
<^ itielf to a con tr&c-t. Xlie iniaum is ftvbject
totbeeongreinktioik. l^liat ie the congregation
WithtmLiority ;
Mr. Inncfi : X€ tli&t Is fo« the congregation
nut \)e fixed upon. \7 )io const i tute the congre-
^ Court ^as ne-ver fi^one eo far aB to fix a
poil upon mn ^n^rillinf]; congrezation and we do
Mt wtat a poll. In Salie and Oihert v. Sahiho
(I ^h^ p. 5$^) the Court refused to order the
imaom to csaW a raeetinfi^ of the congregation
iwmch parpoBCB as election of an imaum. The
omgre^ation ha^e mtified the election, and
tlierefore defendant is in same position a.<« if the
meeliiig Yiad been properly called and an elec-
tion had Y>een duly made.
De ViUiers. 0. J. : Mr. Searle, should not the
trnatees be parties to the suit ?
Mr. Searle : A great part of the claim is not
against the trart^es ; only that which asks for
deliTery of the key^. There is no c^aim for eject-
■leot. We ask for a declaration of r'ght as to
ibe office. Defendant should hare excepted.
There in a doubt raised now. as to who are trus-
tees. All the original trusteen who are living
within the jurisdiction are upon the record,
ezeepi one, and he has resigned.
De 'Villiers. C.J. : It is quite impost^iMe to lay
mny general rule as to the tenure of the
of imaum in Mohammedan congregations
thia colony. There is certainly no estab-
rule that an imaum once appointed is
eatltled to retain the office for life. The dictum
o€ Bell, O. J. in Jan v. Inmael (5 Searle, 102) to
tliat effect is not supported by the judgment of
Iftis colleague in that case or by Huhsequent
of this Court-. The terms upon which
imaum holds his office must depend upon
cootraeimade hy him with the congregation,
with the office bearers, before or at the time
Off his appointment. If there was no express
e««ntTact^ all the circumstances under which f he
Appointment took place must be considered in
order io a^^certain what tacit agreement as to
the tenure of hi^ office was arrived at. In the
abaence of any proof that an appointment was
intended to he for life, or durintrgood behaviour,
the effect of previous decisions is to regard the
office as terminable at the clearly expre.-sed
desire of a majority of the hotiafde members of
the ooogregation. In the present ca^e the
defendant's appointment took place under cir-
mnjstanoes which negative any contract that
he should hold the office for life, without regard
to the wishes of the congregation. A new
aosqae was consecrated at the Paarl, and after
the oeremooy an adjournment was made to
the pwirtkte residence of the defendant, for the
entertainroent of members of the congregation
and strangers at a feast. No notice was given
that an imaunt would be appointed at the
feast. Just before the meal began, a Bishop
from Cape Town stated that as the congregation
now had a moFque they E>hould also have an
Imaum and with general approral the defendant
was appointed. The church was heavily in debt
and he was to have no salary for his services.
There are other indications to shew that the
appointment was provisional. The corgregation
has now for seven years acquiesced in the
defendant's appointment, but such acquiesoeaoe
does not, in my opinion, debar ihem from dis-
placing biro, after due notice, if they are no
longer satisfied with his ministration. Before a
definite decision can be given the Court must be
satisfied that a clear majority of bona fide
members really desire a change. The Court will
therefore appoint Mr. Advocate Jones as Com-
missioner to take the votes of the members as
to (a) whether they object to the defendant as
Imaum, and (h) if they do object whom they
wish to be Imaum. He will exercise a wide
discretion in deciding who are members.
Regular rajment of church fees will be an
important consideration, b'^t it will not lie
conclusive in the case of persons as to whom
there is clear proof that they have been constant
worshippers in the •rosque. Nor will t arsons
from Wellington or Stellenbosch be excluded if
theyhnvo been recognised by the Imaum and
the Paarl members as members of the congre-
gation. Only persons who have attained
majority should be allowed to vote The meet-
ing will take p^ace at the Paarl on the 2?nd day
of May at 10.30, in the Town Hall, with power
to adjourn to some other moreconvnient place.
Formal judgment will be given, without further
argument, after the Commissioner has handed
in his report. The question of co^ts will stand
over.
Pogtea (May .S'sf) the Chief Justice said :
The Court has already laid down the prin-
ciples upon which this case should be decided
and it now only remains to apply those
principles. The Commissioner. Mr. Advocate
Jones, has made bis report to the Court.
He reports:— "The attorneys of both parties
were p'-esent. Discrimination between the
bona fide members and those who are not
entitled to rank a^ such was attended with a
great deal of difficulty owing to the conflicting
•and directly contradictory nature of the evi-
dence given before me, on oath, by the partisans
of the plaintiff on the one hand and those of
the defendant on the other. Ninety rerfons
claimed to be entitled to vote. Of these I
accepted 61. Of those rejected, .S were refused
on the ground of insufficient evidence as to
142
and tweoty-siz on Account of general dieqaali>
flcation. To the accepted memben the two
questions embodied in the order of the Court
were put with the result that thirty-two
declared themM Ives in favour of retaining the
defendant as Imaum whilst the remaining
twenty-nine wished Keamdien du Toit to be
appointed. Amongst those whose votes I
recorded for defendant was one member who
actually lived in Cape Town but who had for
the last three years come down to the Paarl
once a fortnight and attended service there;
also five members living at Stellenbosch and
one at Riebeek West. Amongst those who
voted for Keamdien du Toit were four mem-
bers living at Wellington,
For Domingo For Du Toit
Thus of the Paarl residents
there were 25 26
Thui of those outside the
Paarl were 7 4
S2
29 61
Now it is not necessary for this Court to
give a casting vote. Even if the Paarl vote
above were taken the plain tifEs have failed to
prove their case and moreover of the eleven
outside members admitted to vote four were
avainst and seven for the defendant. The
judgment must therefore be in favour of the
defendant with cos's, including the costs of the
commission, as the commission was the only
thing that could be done. As to the claim in
reconvention absolution from the instance will
be given.
[Plaintiff's Attorneys, Messrs. J. C. Berrange
JeBon ; Defendant's Attorney. C. C. Silbeibauer. |
SUPREME COURT.
r Before the Right Hon. Sir J. H. db Villibbs,
K.C.M.G. (Chief Justice), Hon. Mr. Justice
Buchanan, and Hon. Mr. Justice Maab-
DOBP.]
C 1897
gMIT V. SMIT'S EXBCUTBIX. j May 6th
Legacy --Vested inter Ft — Insolvency
Mandiite — Estoppel -Sale by trui-
tee.
It being doubtful whether a legatee* t
interest in the legacy of a certain
farm wa» vetted or not^ the trustee of
his insolvent estate obtained his con-
se^it to the sale of such interest and,
upon the faith of such consent, the
sale tooh pUice and the price wax paid
by the purchaser to the trustee, and
by him dintn'buted among the insol-
venfs creditors.
Held, in an action brought by the
insolvent, after his rehabilitation and
after the interest had clearly vested^
to recover the farm or its value from
the ptirchaser, that, whether the con-
sent given by the plaintiff be regarded
as a mandate or as creating an
estoppel, lie wax not entitled to be re-
lieved against the consequences of his
own act.
This was an action brought by Willem
Jacobus Smit againf-t Helena Susanna Smit
(bom Loubser), in her capacity as executrix
testamentary of the estate jof the late Frans
Alberlus Smit.
The plaintiff's declaration alleged:
1. The plaintiff resides at Fraserburg, and the
defendant at Stofkraal in the division of
Fraserburg.
2. The plaintiff is a son of the late Frans
Albertus Smit, and of his predeceased wife
Renske Smit, bom Van der Westhulsea, who
were married to each other In community of
property.
B. The defendant is the duly appointed
executrix testamentary of the estate of the said
late Frans Albertus Smit, and is sued in her
capacity as such.
4. By a codicil dated the 21st day of August,
1869, made to their mutual last will and testa-
ment dated the 28th day of January. 1868,
pursuant to the reservatory clause therein con-
tained the said late Frans Albertus Smit and
the said late Renske Smit (born Van der
Westhuizen), declared that our place Stofkraal
is hereby bequeathed to the survivor of us for
1,000 rixdollars with the understanding, how-
ever, that the survivor shall not be able to sell
or mortgage the place while after the death of
the survivor the said place shall become the
property of both our sons Willem Jacobus
Smit (F. A. son) and Jacobus Hendrik Smit
(F. A. son) for a sum of 12,003 rixdollars, the
plaintiff craves leave to refer to the terms of
the said will and testament.
143
(•Ibcnafter o¥& tlie 1st day of September,
l^the Bftid l&te :Reii*^ke Smit died. leaviDg
thceiidviil«TkdL testament &Dd the Mid oodioil
tktntoof fuU loTce and effect, and the ^aid late
Vnae A. Sm\t adiated and accepted benefits
tberewiQer, and on tbe i^th day of April,
)^ the Mid Frans 8m it alfio died.
i Bj the terms of the said oodicii referred to
n ^tngTaph 4 of this declaration the plaintiff
ay«^ttt entitled to elaim from the defendant
the tii&Eier of one l&alf part or Khare in the
pbee or farm called Btof kraal, sitaated in the
^iknei of Fraaerburgt luid registered in the
laae of the said late Frana Bmit upon payment
made of or a security given for the sum of £460
ftotling by the plaintiff to the defendant, in her
aald capacity, which said aum the plaintiff has
tendoed and hereby sffain teadera to pay or
■ecme npon the defendant passing transfer to
Mm of the said share in the said form.
7. All things have happened, all times have
smd all conditions have been fulfilled to
kitle the plaintiff to claim transfer of half
Off* fihare of the said place or farm called
the plaintiff tendering the sum of
£4S0 as aforesaid, but the defendant wrongfully
unlawfully refuses to transfer the half of
eaid place or farm Stofkraal.
Wherefore plaintiff prays:
C^^ F'or an order compelling the defendant in
har said capacity to transfer to him half of the
SAid piace or farm in terms of the said codicil,
npon the plaintiff paying* or securing the said
C^> Alternative relief and costs of suit.
The defendant's plea was as follows :
1« Sifte admits the allegations in par. 1, 2, 8
SL As to par. 4, she craves leave to refer to the
id oDdicil, when produced for the terms
and says specially that under the said
wrill tbe aurvivor and children of the first dying,
appointed sole and universal heirs of the
dying, of all property movable and im-
►▼able, the survivor to educate and maintain
ehlldren and to pay to them at their majo-
or other approved condition, such
the sorvivor should according to the
of the joint estate find to be due to
'X In <n about 23rd November, 18 i 7. the estate
of the plaintiff was surrendered as insolvent,
asd all the right or expectancy of the plaintiff,
IB and to tbe farm Stofkraal was duly sc Id by
pabtio auction on or about April 20th, 1878, as an
^■et in bis estate by the Trustee thereof and
■as pmvliased by the Fsid late Frans A. 8m it
br tbe mua of £2L6, which sum was duly paid
SBd was tteremfter distributed as an asset of
plaintiff's estate and the estate of the late Frans
bmit is now entitled by virtue of the said sale
and purchase to a half share in the said farm.
4. The tinal liquidation and distribution
account in the said estate was thereafter duly
confirmed and the insolvent has been rehabili-
tated, but there remains a large deficiency in
his estate.
6. The sale of the rights aforementioned of
the plaintiff was made with his f u 1 knowledge
and consent and he has acquiesced in the same,
and on or about May 8rd, I878« he acknowledged
in writing that he had no further rii^ht to the
eaid share.
6. She admits that the farm is still registeied
in the name of the late Frans A. omit, and that
plaintiff has tendered to pay or secure the said
sum of £150 as alleged in paragraph 6 of the
declaration upon the defendant passing transfer
to him of the half share in the farm, but she
denies he is entitled to claim the said transfer.
7. She denies the alligations in paragraph 7,
save that she admits ihat she refuses to transfer
such Mhare ; and prays that claim be dismisMd
with costs.
The plaintiff's replication was as follows :—
1. He admits the allegations of fact in paia-
graph 3 of the said plea ; denies that the estate
of the late F. A. Bmit is entitled to a Half share
in the said farm, and says that at the date of tbu
said sale, on the 20th April, 1878, he had no
vested interest in the said farm under the said
will capable of being sold by the said trustee.
2. With reference to paragraph 4, he says that
the final liquidation and distribution account
was confirmed on the 2uth November, 1878, and
specially thai uo right or interest in the said
farm under the said will vested in him (the
plaintiff) until the 17th April, 1896.
3. He denies the sUegalions in paragraph 6,
and says that at the date referred to therein he
was entirely ignoiant of his rights under the
said will ; that he signed the said documents in
ignorance of his rights and in ignorance of its
oont'Snts. and that the said writing was obtained
from him by means of misrepresentation and
fraud after his estate had been declared insol-
vent and a trustee thereto appointed.
Otherwise the replication was general.
On these pleadings issue was joined.
Mr. Qraham for the plaintiff.
Mr. Beaxle, Q.C. (with him Mr. Close) for the
defeLdant.
The following evidence was given for the
plaintiff :
Willem Jacobus Smit, the plaintiff, said he
resided at Fraserburg. He was the son of
Frans Albertus Smit. Witness surrendered his
estate previous to his father's death, and a sale
144
of his estate was held. Witness objected to
the trustee selling his expectancy under his
ffUher's will, asking how this could be sold
when he could get nothing until the deceaKe
of bis parents. Witness bad tince been re-
habilitated. Witness signed the document pro-
duced, which made over his expectancy, in
ignorance. At the date of the sale witness
knew what were his full rights under
the will and knew that his rights
oould not yest until the death of his
parents. The value of the whole farm was
i&3,000. This was a fair value at the present
time. Three days after hid father's death he
first heard the document reed. Ihe defendant
was not present. Witness claim, d that he was
entitled under the will to the transfer of one
half of the farm.
Cross-examined: He did not know that his
right under the will was advertised for sale by
public auction. Witness was present at the sale,
when his father bought the sbare of witnees for
£2Sotf. He would deny that the document ^as
explained to him before he signed it.
Jacobus Hendrik iSmit knew the last witness,
who was his brother-in-law. After the insol-
vency of the last witness he eigaed a document
which was not read over to him. Witness was
present at the time. Willem wanted to read it,
but they would not allow him to read it. Plain-
tiif afterwards signed it.
Crose-examioed : Plaintiif was at first un-
willing to sign the document. Mr. Hemming
induced him to sign the document, saying it was
a paptr that was forgotten in the sale. Hem-
ming said it was not necessary that plaintiif
should read the document.
This closed the case for the plaintiff.
For the defence,
Robert Campbell Hemming, now of Johannes-
burg, but formerly in partnership with Mr.
Smith at Fraserburg, said he knew the plaintiff.
Mr. Smith, partner of the witness, was trustee
in the estate of the plaintiff. The document
produced was in the handwriting of witness,
and was signed nearly twenty years ago.
Plaintiff was not coerced into signing the docu-
ment, and witness was quite sure that plaintiff
was not persuaded to sign anything he did not
understand.
Cross-examined : Witoess could not remember
how he came to write the document.
This closed the evidence.
Mr. Qraham : No right was vested in the
plaintiff at the date of the insolvency ; Jaiiei v.
J/a^A«fr« (7 Shell 86) clearly uettle.^ this poiut in
the case. Under this codicil a direct bequest to
the survivor is made. If either child had die<l,
his children would not have succeeded. Till ihe
death of the survivor no right to this farm waa
to vent. The iutention is the main point. As
to acriuiesciog — even if the Court disbelieves
plaintiff a8 to the fraud alleged by him, yet if
this is a lidei cwnmiififum the document relied on
to prove acciuiescenoe does not alter the state of
affairs at all even if the plaintiff knew his rights
for there is no consideration for the document.
The Chief Justice: The purchaser burs a
doubtful right. Before paying, he gets a docu-
ment signed by the plaintiff to secure himself,
then pays. That is consideration— and aufii-
cient consideration.
Mr. Graham: But the purchaser had already
bought and was therefore already bound. If the
plaintiff was ignorant of his rights he is not
bound even if there were no fraud.
Mr. Searle not called on.
De Villiers, C.J. : The terms of the oodicil in
question are in many respects similar to those
which the Court had to construe in Strydom^'s
case and I do not wish to add anything to the
remarks then made. Assuming, however, that
the insolvent had no vested interest in the
legacy before and at the time of his insolvency,
the question still remains whether he can now,
after his rehabilitation, claim the farm or its
value from the executrix of the purchaser.
Shortly after the auction sale of the farm to
the insolvent's father, the insolvent signed a
document acknowledging that all his interest in
the farm had been publicly sold with Lie full
concurrence. It was in consequence of th s con-
currence that the sale was effected, and without
his signature to the document his fattier would
not have paid the purchase price to the trustee.
Can he now claim the value from his father's
estate on the ground that his right to the
legacy did not ve»t until after the confirmation
of the account of his insolvent estate ? If n
person stands by knowing that an article
belonging to him is being sold to a third parly
and does not object to the sale, he is held to
have authorised the tale. A fortiori if he con-
sents to the sale he cannot afterwards recover
the article or its value from the purchaser who
has paid the purchase price to the seller. It is
true that in the present case the only considera-
tion received l>y the insolvent is that the
fund for distribution to his creditors has
been increased by reason of the sale of his
interest, but it is the detriment to the pur-
chaser which constitutes the real consideration.
He has paid the money without any possibility
of again recovering it from the creditors and
the payment was made upon the faith of the
plaintiff's consent to the sale. Whether that
145
MMeDiberogarded ms m
voMtiag in eBtoi>pel»
iUi»«d to evade the
Mt To adopt the Imn
•Mh^ilwr ne «i» #«««
itdgmtBt moBt he
Ikirlordshipe
fPkJatiff'B
dut'f Attoney'i
implied maDdate or
plainUif oannoi b#
of hU own
of the Roman law,
£oT the defendant
8 Moetert; Delen-
Tredgold, Molntyre
SUPREIVLE COURT.
V^fanlloii.M.r. JoBiioe Buoranan and Hon.
Ut. JuBtlce Maasdobp.]
CKUTWAOBK V. GIBD.
1897.
Maj 6th.
„ 6th.
7th.
»i
1.
This waa an action brooght to reooyer the
dae mder a bailding contraot
plaintiff's declantion alleged :
The plaintiff is a builder and contraotcMr, re-
mt Bottelary, in the diTision of Steilen-
; the defendant, now a widow, resides at
Hill, in the division of Malmesbnry.
Oo 18th Janaar3r,l896,thsplaintiff contracted
e^reed, at the snecial instance and reqaesi
ciefendant, to do certain work and supply
in materials in and about certain buildings
Proepect Hill aforesaid in accordance with
copy whereof signed by the
is annexed marked A, and embodies
oontraot between the parties.
In oonslderatioQ of the performance of the
work and supply of the said materials by
pleiiitiff, the defendant agreed to pay to him
■um of ^B80a
, Thereafter, on the 32nd February, 1896, the
aforesaid was in certain respects modi-
ftnd the defendant agreed to pay the sum of
sterling in lieu of the sum of £800 sterling
Id, as will more fully appear by reference
agreement in writing signed by the
iesv copy whereof is annexed marked B.
The plaintiff duly performed and completed
■Aid work, and supplied the said materials
terms of the said contract so modified, and
defendant at different times paid to him
tncanting to £400 sterling in respect of
tb* anni of S8BO sterling aforesaid, and has
the
I
taken possession of the building aforesaid from
the plaintiff and remains in possession thereof,
but fkrongfuUy and unlawfully after lawful
demand refuses to pay the balance of £460
sterling or any part thereof.
Wherefore plaintiff prays for judgment for
the sum of £460 sterling, or for alternative
relief with costs. *
The defendant's plea set forth :
1. She admits allegations in the first four
paragraphs of the declaration.
2. As to the 6th paragraph, she denies that
the plaintiff duly performed and completed the
said work or supplied the said materials in
terms of the contract.
8. She says that the work was performed in an
unskilful, negligent, improper, and unworkman-
like manner, and not according to the contract,
and was left unfinished by the plaintiff.
4. The defendant has called upon the plain-
tiff forthwith to complete the said work
according to the said contrrct' and remedy the
defects therein, as set forth in the report of an
architect which has been duly supplied to the
plaintiff.
5. Upon the said work being duly completed
and the defects remedied, the defendant \b and
always has been ready and willing to pay plain-
tiff the balance of £450, being the price
according to the said contract.
6. The defendant admits that she is in posaes-
slon of the said buildings, and says that she has
always remained in possession thereof whilst
the plaintiff was engaged in work thereon as
was agreed between herself and the plaintiff.
7. She admits that she has paid to the plain-
tiff the sum of £400, and that she refuses to pay
to the plaintiff the balance until he has com-
pleted the said work in terms of the said
contract ; save as above set forth she denies
the allegations in paragraph 5.
WberefQie she prays that the plaintiff's
claim may be dismlBsed with costs.
The plaiotifl*B replication was as follows :
1. The plaintiff admits that after the com-
pletion of the work, and after the defendant
took posse sion of the buildings, a report of
an architect was brought to his notice raising
certain objections to the work and materials,
but he says that when the defendant took
possession she expressed herself as satisfied with
the work.
Otherwise the replication was general.
On these pleadings issue was joined.
Mr. Innes, Q.C. (with him Mr. Schreiner,
^0.), for the plaintiff.
Mr. Searle, Q.C. (with him Mr. Maskew), for
the defendant
146
The following evidence for the plaintifE was
taken:
William Blaok, architect, practising in Cape
Town for the last three and a half years, said he
had examined the building about which there
was this dispute. There were seyen bedrooms in
the house, dining-room, breakfast-room, and
altogether it was a large homestead. Witnefs
made the plan produced after the building was
completed. Witness bad seen the report of Mr.
Vizseboxse, which, he thought, was somewhat
exaggerated. As to the beam filling, it was not
Absolutely necessary, and was not done unless
speeified. It would cost about £7 to do this.
There was not a sufficient number of down pipes,
two more were required. As to mantelpieoes.
these could be obtained from £1 upwards. Wit-
ness had seen country houses of similar quality
and plastered in no better style. The plastering
was better than in the older parts of the house.
The painting seemed to consist of three
coats. The d6^ris outside should be re-
moved. This would cost about £8. There
was a defective piece of timber in the
roof, but this had been made strong enough by
another piece of timber being bolted over'it.
The valley rafter was nailed to the main rafter.
This was not a good job, but it could be
remedied for a few shillings. One of the sheets
of iron on the roof had been slightly punctured.
Two others were discoloured, probably by salt
water. The punctured sheet could be replaced
by another one for about 6b. 6d. The floor of
the loft would bear 1 cwt. to the square toot,
but there would be a deflection of about one-fifth
of an inch. Ninety -eight tons could be stored
in the loft.
Portsa (May 6th).
[before the full bench.]
William Black, architect, continuiog his evi-
dence under cross-examination, said that all the
windows he saw were painted. The'pl^tering
was pretty fair. There wi^s no plastering on the
inside of the gables. The prices he had quoted
were prices that would have to be paid to local
tradesmen. He inspected the whole of the
house. Some of the windows would not fit
properly.
Be-examined : All the woodwork was of ex-
cellent quality. He had oeen connected with
the construction of eighty-three houi»e«« during
the last three years. The homestead could not
be put up for anything like £860 if Cape Town
building regulations were adopted.
Johannes Jacobus Cruywagen, the plaintift',
said he was a builder who had had experience.
Some time ago he built the public school at
Geres. In January, 1896, witness went
to Prospect Hill, where he found the place had
been burnt so that only the walls were left
standing. Defendant showed witness over the
building, and discussed things generally with
witness. Defendant pointed out where doors
and windows were to be placed, and also where
others were to be closed up. Nothing was said
as to grates or mantelpieoes. Defendant said
ceiling would be too expensive, and that she
would paper the rooms herself, as she could then
choose her own paper. Defendant asked witness
to send in a tender for the work. 6he said she
expected other tenders. Witness sent in the
written tender produced, which was accepted.
Afterwards witness saw the second son of de-
fendant, and from a conversation he had he sent
in an amended tender and came to an under-
standing. Witness afterwards saw Bfrs.
Gird before he began to work. Defend*
ant agreed to pay £50 for extras.
Defendant said she thought the front stoep
could remain as it was. Then it was decided
that the front stoep should be new, and this
was an extra. Other extras, including the
changing of a flat roof to a pitch roof, brought
the contract up to £850. Defendant said it
would be needless expense to draw up doca-
ments, and she would just give the work to a
man whom she could trust to do it properly.
The plaster was in proportion of two parta sand
to one part lime, borne of the sand supplied by
defendant was more dust than sand. There
were nine men on the work. Witnaie lived nenr
the job whilst it was on, and was there every
day, working himself and giving his penonat
supervision. This oontinued for about five
month'. Witness :iad actually paid out for
labour and material £776 10s. 8d., without
reckooiog a penny for his own work or time.
Generally he calculated his own time as worlh
15s. to £1 a day. While the work wan
going on the defendant occupied two rooms in
the lean-to building. The kitchen was made
use of without asking permission, and thia
before the walls were dry or the floor properly
laid. The carting was all done by the de-
fendant. Witness agreed to alter the kitohen.
stove for £5, but be did not now claim thia extra.
He had not been paid this amount, nor had he
been paid another £5 for other extras. Harry
Gird made no objection to the work, which be
inspected daily. He did, however, suggeet cer-
tain miner altera ions. In February, 1896, de-
fendant paid witness £200, another A$00 in
A pril, 1896, and this was all witness received
until an order of Court was made. About the
mi(|dle of July defendant told witness that her
son Harry had been over the place with Mr.
147
^meboae and M:r. I>« Korte, and they found
■■» faults wiiU t^e worlL. At that time the
wWlUieealdtlie money would be depoeited
fcrwitnett. WitneBs wae afterwardB told by Mr,
i)cKorte tha.t tixe money oould not be paid
^tiUtatisfa^ory report bad been received from
tbe architect. Defendant on being asked said
tittiaoi^Vngliad been left nodone that should
^^been done by witness. The son Hany said
^ Toof leaked, but tbis was Tjecause the
mUtn vere blocked with rubbieh. Afterwards
Ui.De'S.oTte aaldbe oould not pay any money be-
caQK ol M.T. V\T8eboxBe*s report, which Mr. De
Koitetaid waa framed as black as it could
poKibly be. Witneas said if he could settle it
vtihoiit going to Court be would allow £25, but
Boecttlement waa arrived at.
f Before Hon. Mr. Jnatice Buchanan and Hon.
Mr. Justice Maabdobp.]
Johannes JacobuB Cnwwairen, cross-examined
by Mr. Searle, Q.C.. said what he said
mA to tbe plaster oonsisting of two parts sand
aod one part lime referred to the outside plaeter.
Tlie inside plaster was natural clay. The win-
do^wB and doors might be machine-made, but
tbey fitted all right. All the carpentry work
done nnder the direct superintendence of
He coald find no leak, and if the place
kked now, he oould not explain it. Witness
s<»ok away two or three ba^s of lime, but no
pimnka. It was before the report that defendant
him she did not know why Mr. De Korte did
pay. Witness did not employ a plumber.
"W itness told his men not to use two or three
cl^maged sheets of corrugated iron. One of the
rskfters bad a knot in it, but this was put right
^wi^h tie>piecea. Witness made no plan.
Posts are sometimes put in the
roof. Witness never made a plan to
build by. Witness tested the rafter that had
been spliced, and found it quite strong enough.
Christisn Henry Dreyer, brother-in-law of
plttintifE, living about half an hour from Pros-
pect Hill, said plaintiff used to reside with him
vlailst he was building at Prospect Hill. He was
mt the farm with plaintiff when he heard
defendant say she was astonished Mr. De Korte
did not pay up. She also said she was satisfied
with the work.
Arendee Cupido, mason, Stellenbosch, raid he
'wms a oompetent ma«on, as also was his brother
VTillem. They were both engaged on defendant's
honse. The work they put in was good. They
were paid by the day. The external plaster was
^ood, two parts sand, one lime. The lime was
good; the ssod was not always good. The new
wcn-k was better than the old.
Cross-examined: The inside plastering wai
good, but it was eight parts sand, two clay,
and two lime.
Willem Cupido, elder brother of the last
witness, gave corroborative evidence.
Joseph Gabriel, painter, who did most of the
work, said it was up to the usual Stellenbosch
standard. Three coats of paint were put on.
The skirtings were stained and finished. Wit-
ness had since done the papeiing of the hous^
for Mr. Harry Gird.
This closed the plaintiff's case.
For the defence,
Johaones Albertus Vixseboxse, architect, Cape
Town, said he had practised in the Colony
tfnd also in the Free State and the Transvaal.
He had had considerable experience. He
adhered to the report he had made as to the
building at Prospect Hill. The roof of the
place was not safe. The floor of the loft was
not fit to bear any considerable weight. There
should be four or five more down pipes. Doors
and shutters did not hang properly. Some of
the shutters had warped, and some were not
properly fixed. Doors and shutters were Of very
cheap class. Most decidedly three coats of
paint had not been put on. He thought the
plastering outside was about one part lime to
nine or ten of sand. It would cost between £300
and £400 to put the building right.
Cross-examined : Witness had had experience
of all sorts of work, both high-class and rough
country work. He arrived at the £300 or £400
through guessing, which he based upon his
experience. He had not gone into details. It
would cost £ 00 to put the roof right, and £50
toput the plastering right. The balance would
be made up in cari^enter's work and painting.
No scientific analysis was made of the
plaster. Witness put the plaster into a
tumbler and dissolved it, and judged the pro-
portions of the sand and lime by his eye. He
put down the proportions as nine of sand to one
of lime. Externally, the painting consisted of
one coat, and as far as he could see there was
only one coat anywhere. The plaster was coarse
because the sand was too rough. The walls were
fit to receive paper. The floor of the loft was
just like a wire mattress.
Poifea (May 7th).
[Before the Hon. Mr. Justice Buchanan and
Hon. Mr. Justice Maabdobp.]
E. Seeliger, architect, said that he had
examined the building, and considered that it
would cost £300 to £350 to put it in the condi-
dition which he was told it ought to have
been in,
146
In oroflB-ezamination by Mr. Innea, witnesB
meDtioned the various sums which woald have
to be expended in repair, totalling £26, but said
that was anlj patchwork.
Anthony Benning, builder, said the building
in question looked like amateur's work. The
roof was not strong enough, and unsafe. He
considered that the place would not last more
than six or seven year8 as a habitable building.
The floor was unfit for a forage store. It was
only safe when there was nothiog on it. There
was a beam within three inches of the chimney
flue. Altogether he had not seen worse work of
the kind. To make the building fit for a forage
store it would cost £270 to £8C0. The flooring
and joiitts would cost £120.
Cross-examined by Mr, Junes: He had
ignored the specifications altogether when
criticising the building. He would not have
built the place for less than £1,9U0 or £1.400,
and he was sorry for the man who took the
work at £850.
Adolphus William Ackerman, architect, Cape
Town, said the character of the work of the
building in question was very poor indeed-
absolute jerry building. The roof was unsafe.
As for the floor of the forage store, he thought
it would hold about half a cwt. per square foot
The skiiting boards were fixed with nails
which would have been more appropriate in the
raf ters* and the rafters rice versa.
Cross-examined by Mr. Innes: The hou^e
should have been built exactly as the old house
was. The old house had stood sixty years ; the
{Iresent one would not stand ten years. In one
place he remembered the specifications not
having been complied with. There was 1-inch
flooring specified, and only f-inch
was put in. It was a common thing in the
trade to supply i-boards when 1 inch was
specified.
Re-examined : The house leaked all over. If
new doors and windows were put in, the cost of
making a good job of the house, £600; without
windows and doors, £460. To build a house of
thesise of the one in question would cost £1,600.
Mrs. Emily Elisabeth Gird said she had
entered into an arrangement with defendant to
build the house. Since the house had been
built it had leaked dreadfully. She had not
said that she was satisfied with the work, but
she had said that she wanted the work well
done.
Cross-examined : She had promised to give
Cruywagen £200 on account whilst at Stellen-
bosch, and afterwards she said she would write
to Mr. De Korte. her agent, to tell him to put'
£860 to his credit. But she kept finding
different defects in the place. In October she
had told Ciuywagen she was pretty well latia-
fied. Now she was very dissatisfied. ^ he had
never been willing to settle the dispute for £50
or £60.
Harry Charles Oird, Bon of the defendant,
said he had been in Johannesburg at the time
the cont act was i ntered into. He came down
before the building was finished. He bad
removed the rubbish from inside the house He
had never heard Cruywagen complain of the
quality of the sand or of want of bricks for the
w.c. steps. During the last rains eighteen dif-
ferent leaks were found, in addition to the win-
dows. In a heavy wind there were rooms in
which a candle ooald not be lighted.
Cross-examined : The gutters leaked con-
siderably, so that the rain-water tanks received
scarcely any of the water. In tiiree sheets of
corrugated iron seven Ecrews had been driven,
and not one had touched the rafter.
William Oird, son of Mrs. Gird, said that
Cruywagen had not complained of the quality
of the sand or lack of bricks. He corroborated
his brother's evidence.
After argument.
The Court gave judgment for £400 (of which
£2^ has already been paid) with costs, includ-
ing costs of the two orevious applications.
LPlaintiff*B Attorneys, Messrs. Walker k
Jacobsohn; Defendant's Attorney, J. C. de
Korte.]
SQPREME COURT.
[Before the Right Hon. Sir J. H. DB Villisbs,
P.O., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
PROVISIONAL ROLL.
BAM BBOB. AND 00. V. P8BKINB
"{
1897.
May 6th.
Mr. Graham applied for final sequestration of
defendant's estate.
Granted.
ILLIQUID BOLL.
SOUTH AFRICAN MILLING COMPANY V. MABAI8.
Mr. Close applied, under rule 829, for pro-
visional judgment on a sum of £69 198. 6d. for
goods sold and delivered, with costs.
Granted.
149
GBKERAL MOTIONS.
18 THB INSOLVENT ESTATE OP GEOBUB M.
KDVEADE8.
Mr. Molteno Applied to make abfolule the
rale nisi iMued under the Titles RegiBtra-
tion and Derelict Lande Act for transfer
to the trueteefl of the said estate of certain
three-eighth shares of Lot No. 1 of the
farm Wynand's River, in the district of
Ondtshooin, purchased in 1880 from the estate
of Philip A. du Prets, of whic h transfer cannot
be obtained, as the representatives have lei t the
Colonv and their whereabouts are unknowr.
The Court granted the application.
IN THE ESTATE OP WILLIAM HEATHEB8HAW.
Mr. Graham applied for authority to
the Sheiiff to pay over to the General
Estate and Orphan Chamber the balance
arisiBg from the tale in execution of
portiona of Lots Nos. 41 and 42, being ground
sitpated in the Tillage of Wellington, in reduo-
tion of a mortgage liond on the came taken over
by the Chamber to liquidate the inolventcrstate
of William H. Lategan. from which estate the
caid Heathershaw bought the land, the mort-
gage bond to secure the balance of the purchase
price being lost or mislaid.
The Court granted rule «m as prayed, rule to
be returnable on May 14, and to be personally
served and published once in a newspaper
circulating in the district of Welliogton.
THE PETITION OP MART ANN MORGAN.
Mr. Macgregor applied for authority
to petitioner to sell and transfer, without
the assistance of her husband, who left
the Colony in 1885 as a seaman and has not
since k>een heard of, certain land near Port
Ilisabeth, purchased with funds accruing to
peiitiooer out of her father's estate, and to
apply the proceeds in payment of taxes and
eosts,and the balance in aid of her maintenance
snd support.
The Court granted the application.
THE CO-OPERATIVB BAKING OOMPANY.
Mr. Close applied for an order in terms of
the report of the official liquidator.
The Court appointed Mr. C. C. Hilberbauer
tt attorney for the liquidator, with the
remoneration of 6 per cent, commission, the
liquidator to have power to call up the remain -
log IQb. per share unpaid, and fixed the 3 let
instant as the last day for filing claims.
Edf parte van deb BYU^In re acHoi/rz.
Mr. J. Koss-Innes, Q.C., applied for an inter-
dict restraining the sale of certain property
pending an action upon a will.
The Court granted a rule niH calling on the
respondent to show cause on the 13th May why
the interdict shall not be granted, pending an
action to have the will set aside ; rule to be
served on Messrs. J. H. Hofmeyr, A. B. de
Villiers, and the respondent.
BELL V. BELL.
This was uu action brought by the wife
against her husband for restitution of conjugal
rights failing which, for divorce. The parties
were married in community of ]>roperty on
January 9. 1891, at Ourghersdorp.
Mr. Benjamin appeared for the plaintiff.
Florence Kate Bell said the was married on
January 9, 1891, to John Louis Bell. There were
no children of the marriage. Witness lived
with her husband untiiS:*eptember,lb9l, when
she went to England with his consent. He
promised to send witness £7 a month, but he
sent her no money. Witness wrote to her
husband several times but received no reply.
Witness afterwards returned to South Africa in
1893, and went to Johannesburg, where she
hi ard her husband was. Afterwards she wrote
to her husband, who was in Bunchersdorp, asking
for an allowance, but received no reply. Then
her Folicitors wrote to defendant, whereupon he
sent a letter stating that he was not willing to
oohabitate with plaintiff, nor to make her any
allowance. Plaintiff was willing to return to
her husband.
The Court granted a decree for the restitution
of conjugal rights, defendant to return to
cohabitation on or before May 31, failing which,
calling upon defendant to show cause vhy a
decree of divorce should not be pronounced.
[Plaintiff's Attorneys, Messrs. Van Zyl ii
Buissinn^. J
150
SUPREME COURT.
[Before the Right Hon. Sir Hbnbt db Vli.-
LI EBB, K.C.M.G. (Chief Jastice), Hon. Mr.
'Justice Buchanan, and Hod. Mr. Juotice
Maasdorp.]
( 189..
'. i May lot
( M 111
KINQ y. COLONIAL OOVBBNMEKT. < MSV 10th.
llth.
Carriers — Onus — Delivery — Railway
Department.
This was an action for £340 damagefi, for non-
deli very of four wagons, instituted by King
Bros., of Durbanville. against Sir James SiTe-
wright, in his capacity as Commis-eioner of
Public WorlcSf and as such representing the
Colonial Government.
The declaration alleged that on the 17th May,
1896, the defendant, by his servants or agents
employed by him in and about the business of a
common carrier by rail, duly received from the
plaintiffs at the Malmesbury Station and under-
took and agreed safely to carry and convey and
to deliver to the plaintiffs, or to sueh person or
pe' sons as they might appoint, at the station at
Mafeking sixteen wagons, the property of the
plaintiffs.
The said wagons were received by the de-
fendant upon certain railway trucks, numbered
6,004, 1,943, 2,325, 2,F66 3,765, and 3.071, upon
which the said wagons were duly loaded for
carriage and conveyance as aforesaid.
Thereafter, on the 12th May, 1806, the plain-
tiffs duly instructed the stationmaster at
Mafeking, the defendant's servant or agent, to
receive Fuch instructions, to deliver the said
wagons to Musson Bros., of Mafeking, who had
purchased the said wagons from the plaintiffs.
The defendant by his servants and agents duly
delivered ton of the said wagons to Musson
Bros., and the latter also further received from
one Julius Weil two more of the said wagons,
which had been carried and conveyed to
Mafeking on the truck Ko. 3,766, but which
were, by mistake on the part of the defendant's
servants, in the first place, wrongfully and un-
lawfully delivered to the said Julius Weil, but
the plaintiffs or the said Mufson Bros, did not,
and have not at any time, received delivery of
the remaining wagons, four In number, which
had been loaded as aforesaid upon the trucks
Kos. \943 and 2.866, the said wagons being of
the value of £310, and the cost of carriage
to Mafeking being £25 8s. lOd.
By reason of the failure and neglect of the
defendant^ af tor lawful demand duly to deliver
the aforesaid four wagons to the plaintiffa or
to the said Musson Bros., the plaintiffs have
Bostoined, if the wagons be now delivered to
them, damages in the sum of £100 over and
above the coat of carriage aforesaid, inasmuch
as they have lost their profitable contract of
sale of the same to the said Musson Broe., and
inasmuch as the wagons have now fallen in
value.
If the said wagons are not delivered to the
plaintiffs they have sustained damages in t^e
sum of £340, being' measured by thevalne of
the said wagons, with interest thereon from the
time when ihey should have been delivered.
The plaintiffs claimed :
(a J An order compelling the defendant to
deliver to the plalntiflis at Mafeking the four
wagons aforesaid in good order and condition,
(b) Judgment for £100 as and for damagea;
or in the alternative to ^a) and (k),
(e) Judgment for £310 damages and coata.
The defendant in his plea admitted the
receipt of the wagons, snd of the instmotiona
to deliver them to Musson Bros., of Mafeking,
and specially pleaded due delivery of ,the
same.
He alleged that the plaintiffs had failed, and
refused to nay the carriage on the said four
wagons, amounting to £25 8ii. iOd., which
amount he claimed in reconvention.
The replication was general. In their plea to
the claim in reconvention the plaintiffs admitted
their refusal to pay the carriage on the missing
wagons. Issue was joined on these pleadings.
Mr. Innes, Q.C (with him Mr. Schreiner,
Q,C.), a peared for the plaintiffs.
Mr. Sheil (with him Mr. Bisset), for the
Government.
For the plaintiffs the following evidence waa
given :
John King, member of the 6rm of King Broa.,
Durbanville : On 1st May last year they
undertook to s ^pply Musson Bros., of Mafeking,
with siztoen wagons, the coat of which was to
be £77 lOs., although he aftorwards made a re-
duction of £2 10B.per wagon. They were what wera
called the Koeberg wagons ; they were second*
hand wagons. His firm had been supplying a
large number of wagons to Weil, of Mafekini^
and about the beginning of May he had a tele*
gram that everything at Mafeking was " mixed
up." and that delivery of the wagons could not
be obtained. Accordingly on 5th May he went
off for Mafeking himself. At that time the
sixteen wagons for Musson Bros, were at
Malmesbury. A large number of wagons were^
at that time being despatohed to the
North, and he noticed at Mafeking that
there were about 150 yards along the
161
mSmvf line etre^rt& ^rith pieces of wagons.
Thm were bem|»s of <liSereiit seoiionsofwagoDB
lyiiig iboat in heaps, mii«l sremt confuBion pre-
ivkd. H'lB wms^ns ^rere sent Dp io sectioDs.
iitiBwtgoms did not mrrive at Hftfekloghe,
QBlfth Hay, came aa far aouth m Beaufort
Wot in qaest of tbem, and before leaving
MBf^iog he 9ave the etationmaster written
iutractioDBma to the disposal of the wagonB
Aouki they mrrive ia hie absence. He foond no
tnceof the wagoop, and returned to Maf eking
oaSoiday, I7ih May. Sftusaon Broe. hadoattle
VBiting fo^ the wairoos, end were greatly inoon-
TcnicBoed by the delay. 'Witness was informed
\ff the Btaticvnmaster that no wagons had
aimed, but on the Sunday evening, on going
nnsd the station himself, he difoovered a
tnek, of which he had the number,
wfaieh eontalned a portion of his wagons.
Witneas did not eee any railway official present
to see the putting of the wagons together or to
BceUiatdeliTery was given. The railway staff
at Mafieking waa not adequate. There was oniy
^mt official that he hnew to be an official, but he
hui BO much to do that he was always ** all over
the place." I he ten wagons were put together
€S Tuesday, 19tb. and deliTery w s made on the
Mh. None of the wagons bore marks; of (hat
he waapoaitiTe.
By Mr. Justice Buchanan: He was certain
that there we*e not four of the wagons marked.
Mr. Innes said that it was contended by the
defendants that four of the ten wagons bore the
uiarkB of the trucks they had arrived in. That
was one of the Important points of the case.
l^itaeBS said that on the 27th it was pointed
out to him that four of the ten wagons were
By the Chief Justice : On the 20th there were
> Diarks, but the marks were there on the 27tb.
wagons were then in the possession of
but were standing on railway ground.
Witness gave details of wiring to ascertain the
whereabouts of the missing wagons, which
efforts were, however, fmitlefls. On 24th May,
witness began to keep a note of all the wagons
that arrived bearing goods for his customers.
On 21th May, he observed that one of his trucks
had arrived, and on speaking to the station-
master on the subject, that official made a
thorough examination of his books, and then
said that witaesi's trucks had arrived, some on
14th May and others later. On the 27th,
witeeas foond four of his wagons, marked
With the number of trucks, two, 2,866,
sod iwo, 1,913. standing where the ten already
mi e n w l to hmd been. Four of the tea had been
mat up'Coantry. He was certain that the four
wagons were not marked before the 27th of the
month. Afterwards he transferred to Musson
two wagons which had gone to Weil.
By the Chief Jut»tioe: It was possible that the
four marked wagons were not part of the iirbt
ten. Four more might have been despatched by
Musson, and the four marked wagons might
have taken their place.
Witness could not cow dispoife of the wagons
at Maf eking. Owing to the great demand for
wagons then for the Mashonaland expedition
the prices then were high. He calculated that
his loss would st leabt be £60 per wagon. Wit-
ness put4n a formal claim for the four missing
wagons.
Gross-examined by Mr. Bheil: Witness said
that the marks were put on the wagons in ques-
tion to cover somebody's negligence. On a
ptevious occssion he had trouble with the Bail-
way Department there, wagons having been
delivered to Weil, when they were consigned to
one Gcrrons. Weil at once returned the wagouB
when the mistake was made known to his firm.
By Mr. InneB : The Railway Department did
not know they had delivered the wagons to the
wrong person.
By the Chief Justice : By his books witness
could Bbow how all the wagons despatched from
Malmesbury were disposed of, and these books
showed that there were four wagons short.
Alfred Musson said that he last year was
ca'ryingon busineBsat Maf eking as conunission
and forwarding agent. He had a partner, and
the name of the firm was Musson Brothers. He
purchased sixteen wagons from King, and for
three weeks had six teams of mules waiting for
bIx of the wagons. Tht7 were foi the Char-
tered Company. He corroborated as to re-
ceiving the teu wagons which came off four
trucks. Subsequently he received two wagons
from King, which had gone to Weil. The ten
wagons were off* loaded by railway servaots, by
a large aang of *' boy 6.'' He was told that the
missing trucks had arrived on 14th. Witness
was present when the wagons were off-loaded
and while they were put together. Witness
did not fee marks on any of the wagons. The
wagons were placed in front of his office, and
he every morning ran his e)e along them to see
if the ten, and othe s that he had, were all
there. The ten remained intact there. On 26th
May he received two more wagons from King.
The price was £75 » for the ten and £160 for the
two. Mills afterwards drew his attention to
marks on four of the ten wagons, and the
stationmaster said that the four other wagons
must have been received. Witness ridiculed the
idea that he had received the four other wagons.
152
Mr. InneB : It will he found th«t none of Jdr,
KiDg^B wagons was oont^igned to himself, to
order, but oonsfgned as " oats" to Mr. Weil.
Witness said there was a " lK>om '' on at the
time, and the railway staff was quite inadequate
for the work.
The Chief Justice : 1 was at Mafeking in
May last year, and I saw for myself the con-
dition of things. The confusion was very great.
Witness said the usual green ticket, attached
to trucks with vehicles, was not attached to any
of the trucks. Mr. Musson was formerly in the
Railway Department at Cape Town, and knew
that goods were not given out without receipts.
At MafekiDg no receipts were taken, except
perhaps for donkeys and mules.
Cross-examined by Mr. Hheil: Witners never
saw railway officials mai king articles as they
were loaded. There were no marks visible.
He engaged u errons to put the wagons together
and charged for the ten.
Joseph Gerros. coach and wagon builder at
Mafeking, said that in May last year there was
a great rush of traffic at Mafeking Station, and
the staff was perfectly inadequate to cope with
it. Six wagons, on one occasion, consigned to
him were delivered to Mr. Weil. He remem-
bered Mr. Musson giving him instructions to
put together sixteen wagons coming from King.
Witness then watohed every lot of trucks that
came in. looking for the waguos. He and King
on the Sunday evening discovered the wagons in
trucks standing at the station, and witness
afterwards, with his foremen, put them to-
gether. There were ten wagons, and there were
no marks whatever on either of them. Witness,
a week later, heard that four of the ten wagons
were numbered. He did not put any more
wagons together for Mr. Musson at that time.
Cross-examined by Mr. Sheil : His duties
were more hupervisory than active, but he could
say that none of the wagons bore marks when
put together. He never saw Mills put wagons
together.
The Chief Justice : Is your case that Mills
put the wagons together 1
Mr. Sheil : It is that he put two together.
By the Chief Justice : Witness had never seen
Mills put a wagon together. Witness got paid
58. for putting each wagon together. His books
showed that he on 19th May received £2 10s. for
putting the ten wagons together. It required
some sl&ill for placing the different sections of a
wagon together, especially when a large num-
ber of wagons arrived together.
Mr. Innes intimated that with the exception
of Mr. Qarrons*s foreman that concluded
his case.
J. Goodman, stationmaster at Wvnberg,
stated that he was stationmaster at Mafeking
in May of last year. He rememberedon the
13th and afterwards trucks arriving with
sixteen wagons for Mu^aon. In off-loading
wagons the truck numljer and the oonaignee's
name were placed on wagons and machinery.
Witness saw that this marking waa done on the
wagons being off-loaded. He saw that moat of the
wagons off-loaded on Sunday (17th) were so
marked. He remembered that later King came
and said that four wagons were missing, and ha
took King's word for it, and wired about the
trucks. On the following Sunday he went over
his books, and found that the trucks with the
wagons had arrived. The wagons were afterr
wards found, one loaded up and three empty,.
Witness had seen Mills putting wagons together,
so far, at least, as to enable said wagons to be
removed from 2^h9 neighbourhood of the
crane.
Cross-examined by Mr. Innes : There was a
good deal of work at Mafeking m May of last
year, but no confusion. If there was oonfnsion,
it was not caused by the Bailway Department^
but by the public Witness admitted that
invoices were for the two trucks said to be
missing, and they did not show that anyone had
signed for their receipt. Another invoice which
set forth that the contents of the truck were
''Colonial oats "and consigned to Mr. Julius
Weil, contained part of defendant's wagons.
Mr. Innes here pointed out that the Bailway
Department's '* truck-book," which should show
when the trucks arrived and when they were
despatched, had not )»een forthcoming. Plain-
tiffs had made repeated applications for the
book since 22nd April, and the latent informa-
tion they had had was that the book had been
sent to Palapye.
Witness could not explain how it was that
the two trucks, which he contended contained
the two missing wagons, had not been signed
for. Whoever off-loaded them should have
signed for them. The green tickets referred
to, which were now produced, he admitted
were receipts for the vehicles having left
Malutesbury. He (Goodman) was quite positive
that the sixteen wagons were off-loaded on
Sunday the 17th. He could not say the exact
hour, but it was during the day.
Mr. Innes : But it was only on Sunday evening
that Mr. King and Mr. Gerrons found the
wagons in the trucks at the s^ttion.
Witness: I am positive that they were off*
loaded on that Sunday.*
The Chief Justice : Was it oostomary for yoo
to off-load goods on Sundays 7
f
158
WitoM » I wma mt MftfeklnK for nine mcuihs
UMllAeT«reoald mvoid workrog on SQBdays,
the pKisare was so Kreat.
kT. Inm : Ilk the eoofiMMiii yea Mimit, ar d
it the great pren of work, is it not ponible you
krc Hade » mliifcake 7 Do yoa sot off-load on
IhfeMMday?
WVkMfti adherad to hia Blateinent that tho
off-lotdiDg took place on Sunday, 17th.
Mr. Innca : Well, here are the iavoieca which
Me that one wagofQ arriTed oa the 17th and
•■other on the Idtb. How do you explain that 7
WHnna aaid he could not explain it.
Mr. laaee ; Did yoa not begin to off-load on
Ihe Banday and eonelnde with what trnekii there
veie on the Monday.
Witneai : No, we finished the work right o&
Mr. lenea: But Mr. Kin|[ saya he mW eome
if Ui wagoaa ia the tmeks on the Sunday trvBf
iof, and Mr. Gerrona supports him. Do yoo
lhiBk,for inatanoe, that Mr. Oerroae it not
triiiagthe truth?
Wilnen : I believe he is telling the trath ao
far as he can remember.
Mr. Inaes: Is it not more likely that you, who
vere off-loading wagons <*aily, are making the
miitake about these particular wagoos ?
Witne s : I may be, but I think not.
/WfM (May 11th).
J. Goodman's cross-examination by Mr. Innes
waa I finned. Witness gave verbal instraotienB
to the foreman and checkers to have the eff-
iaadid gooda marked with the marks on the
tniekaL He could not remember the date, but it
waa befor the " boom ** set iOb In the ease of
Oenoms's wagons which went to Weil by mis-
take» tliey bad not been marked for Uie reason
Weil'a people off-loaded the wagows and
them themselvea. Witness was aware that
after a time King marked his wageas as they
arri^ g d at the station. It was true that Weil
had a aeparate siding to himself, although the
tracfca Biarked **oats,** which contained plain-
tiiTa wago^p, did not go tbere. The oats were
sC-loaded at the department's station. Witness
the trucks of oats off-loaded.
Mr. laaea r AXL of them 7
Witeesa : Three or four of them,
Xr. Innea : But there were seven tmeks.
Witnesa said he saw the oats from three or
tmeka off-loaded and placed in other
Mr. Innea: Do yoa adhere to your statement
sf yaatefday aboot the off-loading of the sixteen
wavona taking plaee on the Sunday ?
Witoeas: lam notqaite certaia as to one
teasfc. I think that one track may have arrived
w the Monday.
X
Mr. Inneas Then yon do not adhere to year
alalement that the off-loading began and waa
flnisbed on the one day ?
Witness : As far as I remember it waa deae
the same day.
Mr. lanes : And yet yoo say that one traak
may have arrived oa the Monday 1
WHneaa! I think it is pes ible that eae arrived
on the Monday.
Mr. Innes : Tou did not say that yesterday.
Witness : I believe that one truek eameon the
Monday, aa far as I can remeaiber. Of eonna
I am only speaking from memory.
Mr. laaes : Yes, of course.
Witae^s:Andl am quite certain that the
trucks in dvpale were there on Friday and
Saturday.
Mr. Innes : Yon think that from what yoa
saw in the truck-book. Why are you so aare
that the special trucks were there ?
Witness : Because they were oa hind.
Mr. lones: That is, because yomr beaks say so.
Witness : No, they were there.
Mr. Innes : But the only reason you have £o
saying so is because the extracts item your
books say they came in en Friday or Saturday,
and therefore, you declare, when the books say
they were in, that the trueha must have been Id,
Witness : I do uot eay must have been. I say
they were there,
Mr. Innes : But there were a lot of other
trucks ?
Witoesa: Yes, a great many.
Mr. Innes: Where in this truck-book which
should have been produced, and which weald
have shown when the trucks came in 7
Witneai: It was at Maf eking when I left.
Mr. Innes : When was that ?
Witnesa : I left on November 26.
Herbert Mills, at present forensan checker at
Kimberley, said that in May laet he war fore-
man checker at Mafeking. He remeartteied
a certain consignment of wagons arriving, one
el foorteen wagons and rhe other ef two wagens.
The fact that the trucks were leaded with oata
as well drew his special attention to the wagons.
The wagona were off-loaded on Sunday, May 17.
He could remember, as on that day he off-loaded
between sixty and eighty wagona. Mecoald
remember truck No. 1,913 for the reastm that a
servant of Weil's received twenty bags of eats,
and the next day another man came for the re-
maining fifty, and he thinking that the con-
signment was twenty bags short, refused to
take the delivery of the thirty. The stationmastet
ordered him and others to place the marks of the
trucks on the wagons when they were off-loaded.
There was no other method of identifiealion
thftn the truck mayk, Qe heard about the
154
wagons being mlBsing, and on Sunday, 24th, he
went to liuMon's plaoe and found the four
truckB there. They bore blue pencil marks (the
numbers of the trucks) which marks were made
by him. The two invoices might be without
signature, showing that they had arrived, but
invoices did not always arrive with the goods.
Sometimes a week elapsed before the invoice
was received ; sometimes longer, and they had
to be wired for.
Cross-examined by Mr. Innes : Witness said
he could not swear that Musson received the
sixteen wagons. He could not swear that he
received more than ten. Witness did not keep
account of the wagons that arrived or went to
Musson. Often there were no receipts got for
the goods — wagons, and the like. The Railway
Department did not worry Musson and others
about receipts. Witness distinctly remembered
taking two wagons out of truck 1,943 because of
the dispute about the oats.
Mr. Innes : But how would the dispute about
oats make you remember the number of a
truck?
Witness : The dispute was about the truck.
Mr. Innes : No, no. Tou said the dispute was
about the number of bags of oats.
Witness : But from that truck.
Mr. Innes: Did you take a note of the
number ?
Witness: No.
Mr. Innes : Could you give me the number of
any other truck that you worked on at the
time?
Witness : No.
Mr. Innes : Then a day elapsed between the
first man and the second coming for the oats,
and you have said that you off-loaded the track
on the Sunday, so that when the second man
came and the dispute arose the truck would be
gone?
Witness : The truck was still standing there
Of course I am speaking from memory.
Mr. Innes : But you distinctly remember the
number of the truck ?
Witness: Tes.
Mr. Innes : But you can only recall that one
truck?
Witness : Yes.
Mr. Innes : Tell us about the dispute that so
impressed the number of the truck upon you.
Witness: It was on the Friday that one man
got twenty bags of grain, and on the Sunday
another man came who would not take my word
that the first twenty had been delivered, and he
refused to take the remainins: thirty.
Mr. Innes : When did you off-load the wagons
from this truck ?
YTif ness : On the Sunday.
Mr. Innes : Then after you unloaded the grain
did you replace the tarpaulins ?
Witness: No.
Mr. Innes : And the wagons were left quite
open in the truck ?
Witness : Yes. they were left quite open.
Mr. Innes : Could any one see the wagons in
the truck in walking through the station
grounds ?
Witness : Quite easily.
Mr. Innes : Then when Mr. King and Mr.
Gerrons on Sunday evening went through the
trucks looking for wagons, they could easily
have seen the wagons in this particular truck ?
WitneFS replied that he thought so. He could
not remember the hour when he unloaded the
wagons, but he knew that he put them together
and then placed them on the veld near his
house. He did not mention to anyone that he
unloaded two wagons from that truck.
Mr. Innes: Did you tell King and Gerrons at
the Cape Town Railway-station on Saturday
night that you knew Musson had got only ten
wagons ?
Witness: No.
Mr. Innes : And that you knew where the other
four wagons were ?
Witness : I don't remember.
Mr. Innes: But it was only on Saturday
night.
Witness : I did not say that.
Mr. Innes : What did you talk about on
Saturday night ?
Witness: Various subjects— Cape Town, and
so forth.
Mr. Innes : But you don^t remember saying
that Musson did not get the sixteen wagons,
and that if you went against the Railway
Department you would give it to them straight?
Witness: I don't remember talking mudi
about the wagons.
Mr. Innes: You remember the number of a
truck as far back as May of last year, and joa
don't remember what you said about it on
Saturday night ?
Witness: I don't exactly remember the con-
versation.
Mr. Innes : But do you remember anything
you said about the wagons on Saturday night
Witness : No, I don't remember.
This closed the evidence.
(The Court intimated that the onus lay on the
defendant to prove delivery.)
Mr. Sheil : The issue is considerably narrowed
by the acknowledgment of the plaintiffs, that
they have received all the wagons out of this
consignment but four. The onus, of course, is on
us as carriers to prove delivery, but unless Mills
has committed perjury due delivery was made,
iU
King's ctee in tbe box is quite different to that
OD the pleadings : be now almoet makes a case
of fraud m this transact ion, whereas there is no
snggcstion of tbis in the correspondence or
pleadings. If he rests his case on fraud,
he Bhould have pleaded it. and proved
it io the bilt. He has done neither.
Mr. Innes was not called upon.
Jiidgment was given for payment of the value
of the four wagons at £77 10s. each, or £310,
with interest from the date of the summons.
The Chief Joatice said : In tbis case it is
admitted that the plaintiff delivered sixteen
wagons to the Railway Department at Malmes-
bary for convey knee to Maf eking to the plain-
tiffs onler. It is admitted that the wagons
were placed on tracks belonging to the Govern-
ment, and it is admitted also that in the first
iastanoe only ten wagons were delivered to
plaintiff, and of the six others which had been
ordered there were two recovered, found in the
possesfcion of Weil. The action is for the
vmlae of the remaining foar wagons which
arrived, according to the books of the depart-
ment, on the 1 4th and loth of May. It has been
very properly remarked by counsel for the
defendant that in a matter of this kind the
doeoments themselves are of the first im-
portance. But tbe documents which he relies
upon are the corr< epondence which took place
after the event. I don't know if these docu-
ments are of any very great importance. But
the document which U of importance is wanting,
anil that is the truck-t'ook. Bad that book
beeo produced it should have clearly sUown
when the trucks which contuined the wagons
arrived at Mafeking. That might have to
same extent corroborated what had been
■aid on behalf of the Government;
hot, unfortunately, that truck - book
is not produced. It is in the poeseseion of the
Government, but it has gone astray in some un-
aoconntable manner. It has been sent^ it is
aaici, to Zimbabye, or some such far-off place ;
for what reason it is not said. There is no ex-
planation given why this truck-book should
have been sent to such an out of the ^ ay place
when it was wanted in this Court in order to
elucidate the evidence as to the date or
dates of the arrival of the trucks. Now, I
nansi say at once that I consider the evi-
dence of the stattonmaster is perfectly
lionest; he has not, I believe, con-
cealed anything, nor has he said anything which
he knew to be untrue. But we must remember
that at the time there was enormous traffic
gwig to tfafekinR, and the stationmaster was
niHfer-aapplied with assistants. The station-
magter did not wish to blame the department
too much, but it was quite clear that at the time
there was not a sufficient number of hands ; and
further, that butfineRS was carried on there in a
very loose manner was also very clear from the
evidence. As I said before, the wagons were
made deliverable to the plaintiff or
to' order. An order was given by
the plaintiff to the Railway Department
to deliver tbe wagons to Musson, and it is
important to read the terms in which that letter
was couched. It is : " To the Stationmaster,
Mafeking.— I have certain wagons on the road,
and as I am leaving this evening, so as to facili-
tate delivery as much as possible, I shall be
much obliged if you will deliver these wagons
to Musson Bros., who will pay carriage and
sign for delivery." Signature for delivery was
to be given by Musson. That is the universal
practice, and has always existed in regard to
smaller parcels, and I think that it is all the
more necessary thac it should be adhered to with
such bulky articles as wagons when sent for.
delivery. The defendants received the wagons,
and they can only discharge their obligation by
pro\ing that there was a delivery either to the
plaintiff or to the person authorised, and the
person authorised was Musson. It was un-
doubtedly the duty of the department to have
seen that Musson's signature for delivery was
obtained. But no signature was forthcoming.
It was said tbat the department was at the time
heavily pres<ed. that there was a great amount
of traffic going to Mafeking, but th j plaintiff
cannot suffer on that account. He is
entitled to clear proof that these wagons
were delivered to Musson, and that has not
been forthcoming. There is a great deal of
conflicting evidence as to what took place about
the marking of the four wagons, and I believe
the evidence given on behalf of the plaintiffs
that they never saw the marks on the four
wagons. There are three witne&ees who swear
positively that had these four wagons been
marked by Mills, who swore he marked them,
that they must have seen the marks. Certainly
Mr. Geirons, the wagon-maker, who was pre-
sent, and assisted in putting together the
wagons, must have seen these marks had they
been there. But they all positively deny that
there were any marks of this kind on the
wagons. Another fact is proved that whether
the wagons were marked or not, out
of the sixteen Musson only received
ten. He ultimately got twelve, no doubt,
two having been misdelivered to Weil. But
as to the remaining four they have to the
present time not been proved to have been
delivered to Musson. Under these circum-
stances it is quite clear that the plaintiff
M
has established his aue lor dmmagei^ I tbink
the price which wm to h»ve been paid by
MoflooQ to King is a fair test of the damages
Biutaioed. If the wagoaa had been doly de-
livered to Hiuson undoubtedly ^2 ICb. wovld.
have been deducted in reapeot of each wagon
delivered. Seeing that there waa no delivery of
the four wagons we must take the test and
meaeure of damagM to be the full value, A77 10b.,
which makes the amount iSSlO, which amount
I think the defendants should pay, with interest
from the dato of the summons.
Mr. Justice Buchanan and Mr. Justice Maas»
dorp concwrred.
[PlaintiAs' Attorneys, Messrs. Walker A
Jaoobsobn; Defendants' Attorneys, Messrs.
Reid k Nephew,]
SUPREME COUhT.
[Before the Bight Hon. Sir Hknbt ds Vil-
LXBB0, K.aM.a. (Chief Justice^ Hon. Mr.
Justice BuoHANAK, and Hon. Mr. Justice
Maabdobp.]
OAFB DITIBIOJlAL COUNCIL T
1897.
LAMOFOBD. 1 May 1 1 th.
• I
Divisional Couucil— Road — ^Negligeut
construction - Damages.
At a dittamee of sixteen feet from
the side qf a divisional road was a
hole which served as an entrance to a
culvert for conveying water wider^
neath the road to the other side qf
ike road.
The road was protected by two large
stones with just sufficient sp<ice be-
tween them to allow a horse to pass
through.
The plaintiff' was riding along the
roadf when his horse swerved and
then bached a considerable distance
until it passed between the stones and
fell into the hole.
Held, reversing the judgment of the
Magistrate's Courts that the accident
was one which could not have been
reasonably foreseen^ and that there
was not sufficient proof of negligence
on the part of the Divisional Coun-
cil in the maintenance of the road.
This was an appeal from the judgment el the
Resident Magistrate, Cape Town, inanaetloa
in which the present respondent, plaintiff im
the Oonrt below, sued the Cape Divisional
Council for damages for negligenoe^
In the action before the Eesident Magistrate.
John Howard Langford. the plaintiff, claimed
the sum of £20, as and for damages aUegiog :
1. That he (the raid plaintiff) was riding on
the Victoria-road near Oude Kraal on ISth
December last.
2. That owing to the negligence and defanlt
of the defendant Council in not covering up a
certain pit, or not placinsr sufficient protection
in front tliereof, as it was the duty of the said
Council to do, the said horse while backing did
without negligence on the part of the plaintiiE
fall into the said pit and sustain certain injurieai
8. That in eonsequenoe of tiie defendiusi
Council's negligence and default aforesaid, the
saddle belonging to the said plaintiff was so
iajnred as to be almost wortbless and the plain*
tiff has snstained damages and injury to his
hone and raddle, and has become liable for
attendance and forage for the said horse, while
deprived of the use of the same to the extent of
4. That due notice was given to the defen-
dant Council on or about the i4th day ef
December, 1886, of the said aeoAent and the
claim for damages, which said sum of ^KSO the
defendant now refuses and neglects to pay.
The evidence given in the Besident Ma|^
trate's Court was to the following effect:
John Howard Langford stated : I am plein-
tiff, on 13th December last, I was riding on
Victoria-road. I was going in direction of
Oude Kraal, and was on left side of the roed.
I had purchased a horse in August last^ it wea
not listless. I had it under proper controL
The horse stopped still, after it had gone
some distance and commenced to back. It
backed for about 16 feet I did not stop the
horse, as I considered there was no ecoasloa to
stop it. It was t>aoking towards monntein-side.
The next thing J found, horse had got with bind
quarters into a pit and fell down, I on topu
The pit is 13 feet 4 inches in depth, horse fell to
bottom, I on to(\ one side of pit was partially
protected by two stones about two feet in
length between pit and road. The stones were
n^ceable. When my horse went into the pit
It missed the stones altogether. (Photo of pit
put in.) I looked back when the horse backed,
but I could not notice there was a pit. The
A-oad is wider at this part than at othera.
There appeared to be a kind of outspan. On
opposite side of road there is a da ngci e es
precipiosi and it is advisable to keep as dose es
m
DMiblQ to mountain 0i<le. I got out of hole by
nuiWDg oat. It toolL two houra to get the
1mm out It bmd to be got out with ropes, I
ui a iuT rider. X have ridden for the last
oghteeo moDtlis. On ^th I ioBtructed my
•ttonieys to make a olaiin sgainet the Divi-
ikail CottuoU and my hone was offered for
inspection. I value the horse at £16. I am
prepaied to take £7 now for the horse, saddle
ud bridle ; borae has not been out of Etallo for
tvo moatha. I have had to pay for forage all
thfitime. I daim £20 damages. I put in letter,
A. from the Divisional Counoil. The accident
ooctmed at lonr p m. There was nothing passing
it the time. If the horae had backed towards
ths tea 1 oonld have prevented the accident.
If I had ksown the pit was in the road I could
Inta dismounted. I did all in my power to urge
tbehocsetoTward. latruohmyheeliintohim. I
eoold not see the stones when I looked back
fnm the position I was in. The horse bached
in sideways after psasing the stones. I called
in a veterinary auxgeon on 29th January, he paid
two vuita. Aa I was riding the horse stopped of
its own aoeord, it was lasy.
For the defenoe.
Oomeliua M. Lind, stated : I am secretary of
Ube I>iviaional Council. I know the spot in
qaeatiom. The road in question has been con-
stmeted by the Government. The culvert in
question was male by Mr. Bain, Government
r, and stones were placed there for pro-
The road is proclaimed a divisional
but there is no particular widih for vehi-
trsffic. The width is 20 feet and is
(lied to that extentb On account of for-
•f mountain the culvert had to be
placo d where it is to interrupt water. The
bisBpnat atone is fully 3 feet high ; the distance
iimn the boundary of the gravelled road to
the hole is is 14 to 16 feet; whe:e the
ia out of the road. I wrote asking
horse ooaid be aeen tor inspection, but
kived no answer. I wrote again on 22nd
laat, but got no reply. On 16th
Jassiiayy. I heard where horse could be seen.
Croas examined ; I don't admit that it was
the duty of the Council to protect the road.
Tka CsNiBoil ia only liable as regards the road
itst I f ■ There is no deined area proclaimed for
the Vieloi^s-Tesd. There is no notice to the
pablie that the road is 20 feet. They can see
hf the gravel.
Johannes Combrink stated: I am Field-
Onde ELraaL I know the spot in ques-
I ezsmined it next morning. This ppot is
the road. It belongs to Breda. I
seeopj the property adjoining, I have been
fkm» twmmiy^two yemn. The divisional road
is 20 feet wide and slopes on each side. The
guard stones are 10 feet from boundary of
road. The guard stones are clearly visible.
All culverts on road are marked in the same
way. I oundder stones sufficient precaution ;
one is 8 feet high. I would not consider horse
safe to ride if jibbing. The road was the same
width when it belonged to the Government.
The width of the road can be seen by cuttings.
The Resident Magistrate gave judgment for
plaintiff for £16 and costs.
Against this decision the appeal was now
brought.
Mr. Innep, Q.C., for the appellants: The point
is whether the accident was caused by the
negligence of the defendants. The onus is on
plaintiff. The spot where the accident happened
was clearly not on the part of the road used for
vehicular traffic. If the Council made exca-
vations fiear the road it would have had to
protect them, but the Divisional Counoil gave
all adequate protection there; and it was
plaintiff's negligence that caused the accident.
The culvert was right away off the road and
proper guanl stones, 3 feet high, were placed
there. 1 he road was built by a recognised road
engineer for the Government, which g'ves ^rima
fa4fie proof there was no negligence in its con-
struction.
Mr. Graham for the respondent :
The Resident Magistrate's finding was one of
fact.
The Chief Justice : Is there no limit to the
Divisional Counoirs liability to protect persons
outside the road area ?
Mr. Graham : Yes, but it must be a reasonable
limit— not such a short one as this. The plain-
tiff acted reasonably in the matter.
The appeal was sustained.
De Villiers, C.J. : It was proved by the evi-
dence given in the Court below that the road in
question was originally constructed by the
Government, and is now maintained by the de-
fendants. The road, as constructed and taken
over by the defendants, was eighteen feet wide,
which, for the ordinary purposes of traffic,
seems to have been quite sufficient. At a dis-
tance of sixteen feet from the road, on the
mountain side, there was an entrance to a cul-
vert to convey water from that side underneath
the road to the sea. The opening was protected
by two large stones on the side nearest the
T<m^, On the day of the aocident the plaintiff
rode along the road, and for some reason or
another the horse swerved from the road, and
then backed a considerable distance until it
managed to pass between the two stones and
fall into the opening. The question is whether
the damage to the horse was occasioned by the
1^8
negligonoe of the defendants. If there had not
been some space between the two stones the
accident would not have occurred, but the test
as to whether there was negligence, must after
all be whether such an accident as occurred
could reasonably have been foreseen. The hole
was sixteen feet from the road, and there was a
peculiar conjunction of circumslanoes, an ua-
skilful rider, a backing horse, and a space be-
tween the stones just sufficient to allow a
backing horee to tumble into the hole, which
led up to the accidcLt. The Government
engineer, in constructing the road, seems not to
have anticipated the possibility of such an
aoci Jent, and the defendants in maintaining the
road could not, in my opinion, have reasonably
anticipated it. It may be a hardship for the
plaintiff that he cannot recover damages from
the defendants, but it would be an unwarrant-
able extension of the liability of public bodits
to hold that the defendants are responsible for
the accident. The appeal must, therefore, be
allowed with costs.
Mr. Justice Buchanan concurred, saying he
could not find that there was any negligence on
the part of the DiviMonal Couneil, which waa
the foundation of the case.
[Appellantfl' Attorney, W. V. Moore; Respon-
dent's Attorney, D. Tennanti, jun.]
PI&IS y. PIBIB.
This was an action for restitution of oonjugal
rights, failing which for divorce.
Mr. Close appeared for the plaintiff, and
applied for an extension of the return day, pub-
lication of the citation in the ''Gaaette" not
having been made as directed.
The Court extended the return day to 1st
August, and specially granted leave for the
publication to be made in the " Gazette " alone
if personal service could not be effected.
FBCK V. PHILIP ADD CO.
Interpleader suit — Alleged sale-
tioti.
{
1897.
May nth.
Execu-
This was an appeal from the decision of the
Resident Magistrate, Wynberg, in an inter-
pleader suit, in which the present appellant,
Avaldien Peck, was claimant^ and the present
respondent was one of the defendants.
It appeared from the evidence in the Resident
Magistrate's Court that the creditors of one
Omar Amoed had taken out writs of execution
against him ; that among others Philip Sc Co.
seised in execution certain goods in a shop at
Claremont as the property of Amoed, but tuat
Avaldien Peck, father-in-law of Araoed, claimed
these goods as his property, alleging that he bad
bought them from Amoed, by a written agree-
ment of sale in November.
Mr. Karie, agent for the claimant, st«ted that
Amoed and Avaldien came to his ofiicein Novem-
ber, and drew up the document of rale put in :
that no money passed, but that an acknowledg-
ment of debt for the amount was given.
The Resident Magistrate dismissed the claim
for the following reasons :
It appeared to me upon hearing the widenc e
given by Mr. Karie, wtio dre«v up the acknow-
ledgment of sale from Amoed to Avaldien Peck,
and from the surrounding circumstances that
the so-called sale was made by Amoed with the
intention of defeating his creditors, who were
not consulted on tbe matter, and whose claims
for payment of the shop goods made oTer to
Peck had not been settled.
As I considered the transacti<m of the so-called >
sale from Amoed to Peck, who is his father-in
law, to be a fraud upon the creditors of Amoed,
I considered I was justified in declaring the
goods attached to be executable in the judgment \
given against Amoed.
Against this decision the appeal was now
made.
Mr. Graham for the appellant :
The appeal was dismissed.
The Chief Justice said : The Magistrate, f
taking all the circumstances of the case into ;
consideration, held that there was no bona fide '
sale, and 1 am of opinion that he was right I
am extremely doubtful that any sale was
effected ; at any rate, there was ample juatifica- '
tion for the Magistrate to hold that there was v
no sale.
[Appellant's Attorney, D. Tennant, jun.]
SUPREME COURT.
tBefore the Right Hon. 8ur J. H. DB ViLLDBBfl,
P.C, K.C.M.G. (Chief Justice), Mr. Justice
BucHAifAK, and Mr. Justice Maabdo&p.]
PROVISIONAL ROLL.
8NYMAN V. TAir HKEBDBM.
5 1897.
JMay 18th.
Mr. Buchanan, for plaintiff, asked for pro-
v'sional sentence for the sum of A260due on a
agreement of sale. Plaintiff sokl defendant
159
iHXK) morgeii for £400^ payable on the let
Junaiy, 1896, and on 1st January, 1897. The
Kflond instalment had not been paid, and that
WMSittdfor.
I'nmeional judgment was given.
COLONIAL GOVERNMENT V. VAN BENBBUBO.
Prorisional sentence was asked on mortgage
bond for £M4 16e.
Mr. Shell applied.
Application was granted.
OOLOSIAL OOVKBNMENT V. VIHA6IB AND
OTHERS.
ProTiflional Fentence was asked for by Mr.
Sheil on mortgage bond for £{34. less £2o5 paid
OBSOOount.
Application was granted.
( 1897.
J May l»th.
• ) M Hth.
CAug. 2nd.
GARLICS V. BROIDO,
So^enunuated judgment — Provisional
sentence — l^aw of the South
African Uepublic — Writ of execu-
tion.
Where to a claim for provhional
Mentemce on a judgment obtained in
a Landdrosf* Court in the South
African Uepublic in 1889 the
-defence was raised that the Judg-
ment had become superannuated and
should be revived before provisional
sentence could be granted on it^ the
Court heltl that the onus of proving
the law of the South African Republic
lag am the defendant.
Proeisional sentence was refused on
a judgment of a Landdrosfs Court
of the South African Republic granted
^^ht years previously, no writ of
execution having been taken out
within a year of the date of the
judgment.
Motioo for provisional sentence for the sum
of £174 13s. 2dL, being the amount of a judgment
obtai' ed by the plaintiff against the defendant
in a Landdroet's Ck>urt in the South African
Bepoblie in 1889.
Mr. Searle, Q.C., moved
Mr. Molteno. for defendant: The judgment
was granted eight years ago, and is superan-
nated In a Landdrosfs Court judgment given
is valid for a year only : Van der Linden (p. 884).
It is a lower Court. In thin colony a judgment
of Resident Magistrate's Court becomes super-
annuated after one year. Plaintiff should have
had judgment revived before suing on it.
Mr. Searle, for plaintiff : There is no evidence
of Transvaal law before the Court.
De YillierF, C.J. ; We know that the law of
the South African Republic is Roman*Dutcfa
law. BesidcF, ought this Court to give judgment
on a Transvaal judgment which, if it had been
a judgment of the Colony, should have been
revived ?
Mr. Searle: Defendant is domiciled in the
Colony now, and it is difficult to know how
judgment is to be revived in the Transvaal. If
we sued here on the original debt defendant
would set up the Transvaal judgment in de'enoe.
The Court held tbat the onus of proving the
law of the Tranevaal was upon defendant, and
gave leave for Mr. Advocate Wessels to be called
as a witness on that law.
PosteaC^BY i4th).
Mr. Searle, Q.C., said that with reference to
this case (part heard yesterday) Mr. Advocate
Wessels, of the Transvaal, had been seen with
respect to the law obtaining in the Transvaal,
and had said that he was not prepared to give an
opinion on the subject without inquiry. He
suggested that the ca e stand over for evidence
as to the law.
This was acceded to.
Postea (August 2nd).
Affidavits were now read by Mr. Searle, Q.C.,
showing that the law of the Trannvaal as laid
down previously by Law No I of 1874, Art. 40,
and now by Law No. 11 of 1892, Art. 62, was
that a judgment should be renewed within a
year unless a writ of execution were taken out ;
but a writ of execution once taken out remained
of force and could be executed at any time.
Affidavits of Mr. Mel ass and his attorney, Mr.
Lindsay, "tated also that a writ had been taken
out in 1889 and forwarded to Klerksdorp to be
executed there, the impression being that Broido
had property there. There was however no
property there, so the writ had not been executed
and since that time had l»een lost or mislaid.
If the proof of the issue of the writ was not
considered sufficient, he asked for further time
to produce additional evidence.
Mr. McGregor objected to further time being
granted. No proper liquid proof of the debt had
been given; the writ itself should have been
produced No evidence was now admissible ex-
cept that which had reference to the law of the
South African Republic.
The Acting Chief Justice said : This is an ap-
plication for provisional sentence on a judg*
160
meiit obtained by tbe plaintiff in the Land-
dro6t*B Court at Jobannerimrg on May SI, 1889,
more than t-iffbt years ago. When the case
first came before the Court objection was taken
on behalf of the defendant that che judgment
was superannuated. Leave was then given to
allow the matter to stand over sine die to enable
expert evidence to be obtained regarding the
law of the Transvaal as to superannuation. Mr.
Searle had now brought the matter again iuto
Court for the iJaintiff. He has produced afll-
davits showing that by the law of the Transvaal
a judgment becomes euperaonuated in the Land-
droBt*B Court on the expiration of one year,
unless during that time a writ of execution baa
been taken out. The question remains, was a
writ of execution taken out ? No direct evidence
has been produc d to show that a writ of execu-
tioD had been taken out in the Lauddroet's
court, none of those persons who had signed the
affidavits alleged having seen the writ, and in
the absence of any reliable evidence the law of
the Transvaal was that the judgment was super-
annuated, and consequently could not be revived
in this Court. Provisional sentence must be
refused with costs.
[Plaintiff^B Attorneys, Messrs. Van Zyl 6c
Buisslnn6; Defendant's AttorneyH, Messrs.
Saoer Sc Standen.]
ILLIQUID BOLL.
FLBTCHBK'S RETAIL V. BHOBT.
Mr. Gardiner asked for judgment, under rule
829 id), on account of H'i 58.
Application was granted.
BEHABILITATIOMa
Behabilitation was granted in the cases
of Jan Hendrik Lategan and Petrus Mattheus
Luyt.
GBNERAL MOTIONS.
DELPONTB y. DBLPONTE.
f 1897.
( May 18th.
The application by wife for iS50 to be provided
by her husband to enable her to institute an
action for divorce against him. Plaintiff alleged
adultery, but did not mention persons with
whom or occasions on which adultery was com-
mitted.
Mr. ^[cLachlan moved.
Mr. Bearle, for defendant: It is usual in
cases of this kind to give some evidence of bona
fides. Adultery is alleged with twelve persons,
but no names are given, and the reasons given
fpr CQiiicealing the names are wholly insufllicieat.
The Chief Justice said : It is quite clear that
matters have come to such a pars between the
parties that an action will have to be instituted,
and the amount asked for i<« very moderate.
But I must warn counsel that in the dei laration
there must be a clearer indication as to the
times at which the various adulteiies were com-
mitted. I he application will be granted.
If^f ESTATE OP THE LATE JOHAHBBS ▲.
OAEBTBBB.
Mr. McQiegor applied for an interdict restrain-
ing the transfer of a oei tain piece of ground at
Hermanuspetrusfontein, in the division of
Caledon. known as erf No. 33, to
the purchafer thereof pending the prosecutioo
of an action instituted by Abel AUenaensky
against the executrix of t e said estate,' for
transfer of the land in question by virtue of a
contract of purchase entered into between him
and the said Gaertner.
Rule 7ii8l granted calling upon the executors
and Klein to show cause why the transfer should
not be restrained pending the termination of the
action.
Mr. McGregor asked for leave to join Klein as
a defendant ; s*immons bad only been served on
Mrs. Bourchier.
The Court considered that Klein could not be
joined without leave and granted leave to amend
the summons so as to include him and serve
the amended summons upon him. Notice to be
served upon the Registrar of Deeds.
OBOBBBLAAB V. GOU8.
Mr. Buchanan made application for a
further extension of the return day of
the edictal citation in the suit in-
stituted by the plaintiff against the de-
fendant for the recovery of amounts due upon
certain promissory notes, and for inBtructions
as to the service of the process therein.
The date was extended to August 1.
WOUSTONB V. WOLSrONB.
Mr. McLachlan applied to make abflolnte the
rule niH for disFolution of the marriage sub*
sisting between the parties by reason of the
respondent's failure to obey the order granted
by the Oudtshoorn Circuit Court, requiring hina
to restore to his wife her conjugal rights.
The Chief Justice said: There is a technical
difficulty in this case. The return is aeoordin^
to the citation to be on the 13th May, but the
notice does not say in what Court it is to be
made. The notice is headed "In the Cirooii
Court of Oudtshoorn." No prder aau be made
161
■ow by this Court. But as I have b«en informed
by the judge who presided in the Circuit Court,
that the order made wad that the rule should be
retoned in the Supreme Court, and that it is by
an overaiKht that that does not appear in the
pabliahed order, the Court will allow an amend-
ment by inserting the words " In the Supreme
Coort '' and making the rule returnable on the
12th July. Only one publication will be neces-
sary, and that in the "Gold-fields News."
Re IN80LVKKT BBTATB OF LBVI. j Jfaif ^/sth
Insolvency — Compromise — Creditors —
Secood meeting.
Applieeition for discharge of a pro-
vitional order of sequestration^ no
meetings in the estate having been
heldf OH the ground that creditors
had accepted a compromise y ordered
to stand over until ajter the second
meeting had been held^ in case all
he creditors had not consented to the
compromise.
This was an application by the insolvent to
be allowed to withdraw the petition on which
the order ot sequestration of his estate had
been made.
The applicant's petition stated : That on the
SOth April last, your petitioner gave notice ia
the "Qovomment Gasette " of his intention to
nrrender his estate as insolvent.
The schedoles filed show the outstanding
debtff to amount to
Good £64 7 1
INNi •*• ••• ••• ••• ••* 0%j lo O
And Cash in Bank 88 6 11
8tock-iB-Trade 456 16 4
While the liabilities amoonted to
the sum of 874 5 f
That on the 3rd of May last your petitioner's
estate was placed under sequestrstien by order
ol this Honourable Court.
That your petitioner has approached his
creditors with a view of effecting a compromise
with them, and they have all agreed to accept
the som of seven shillings and sixpence in the
<» to be paid in cash on the 14th Instant in
settlement in fall of all claims and demands
they have against me, and that the aforesaid
€fder of this Hononrable Coart be superseded.
Toar petitioner anneats hereto their consent
papeiB, marked A and B, and craves to refer your
lordBhips thereto.
That it woold be greatly to the benefit of the
said oreditors if the said order of Court be
superseded and they accept the sum «f 7s. 6d. as
T
aforesaid, for if I have to wait until the third
meeting of my creditors, the costs of sequestra-
tion would not admit of a composition of 7s. 6d.
in the £ being offered.
Wherefore your petitioner humbly prays, that
your lordships may be pleased to order that the
Order of this Honourable Court, granted on the
3rd of May last, by which my estate was placed
under sequestration be superseded.
The following agreement was signed by cre-
ditors:
We, the undersigned eight creditors of Isaac
Levi, a shopkeeper, of Oudtshoorn, whose estate
was sequestrated by order of the Honourable the
Supreme Court on the 3rd of May, 1897, do hereby
agree to accept a composition of 7s. 6d. in the £,
to be paid on the 14th of May, 1897, in cash, in
settlement in full of our claims and demands
against him, on condition that all creditors
agree thereto and share equally, and we further
agree that the said order of Court be superseded,
as it will be greatly to our benefit to accept the
said composition.
Oudtshoorn, lOth May, 1897.
L. Field & Co.
A. P. Yalenski.
p.p, Cleghom A Harris, J. Mawns.
H. G. Hicks k Co.
T. Smith.
M. Taylor.
M. T. Rollden.
p,p, J. Garlick, R. Hossett.
Mr. Graham for applicant.
The Chief Justice : Is there any precedent for
an application of this nature ?
Mr. Graham: Van ^yVs Judicial Practice
(p. 690). We have not proceeded under Ordi-
nance 6 of 1843, section 106, in order to save ex-
pense. Only the first meeting of creditors has
been held as yet.
The Chief Justice : It is not dear that all the
creditors have consented. The insolvent may
believe that to be the case, but fresh creditors
may still come forward. The matter had
better stand over until the second meeting has
been held.
[Applicant's Attorneys, Messrs. Fairbridge,
Arderne & Lawton.]
WHITE y. ADAMS.
f 1897.
\ May 13th.
Ownership — Vindicatio — Alluvial dig-
ging — Claim — Diamond — Trespass.
The plaintiff being the holder of a
claim in an alluvial digging havmg
temporarily left it, another digger
tooh out a licence for the claim and
found a valuable diamond in it^ but
16^
thereafter the Inspector of Claims
decided that the plaintiff was entitled
to the claim upon payment of the
licence as renewal.
In an action brought by the plaintiff
against the digger who found the
diamond and a person who bought it
without hnowledge of the trespass^ to
recover the diamond or its value ^ the
High Court gave judgment against
the purchaser.
Held, ou appeal, reversing the judg-
ment of the High Court, that the
ownership of the diamond was not
vested in the plaintiff and that he was
therefore not entitled to recover it
Jrom a boua-fide purchaser.
This was an appeal from a judgment of the
High Court of Griqualand West in an action
in which Heniy Adams, the present respondent,
sued Reginald White and Samuel Madella for
return of a certain diamond and damages.
In the suit in the High Court the following
was the plaintiff's declaration :
1. All the parties reside at Barkly West, in the
district of Barkly West. The plaintiff is a
diamond digger ; the first-named defendant is
a diamond buyer, and the seoond-named defen-
dant is a diamond digger and the interpreter of
the Resident Magistrate's Court for the said
district.
2. On or about the 4th September, 1896. the
plaintiff was the duly registered bolder of a
certain claim in the alluvial diamond diggings
at Klipdrift, in the aforesaid district, and as
such was solely entitled to win diamonds from
the said claim and to all diamonds won there-
from.
3. The plaintiff continued to be so registered
and entitled as aforesaid at the times herein-
after referred to.
4. On or about the said 4th September the
second- named defendant, by himself, bis
servants and agents, wrongfully and unlawfully
trespassed upon the plaintiff's said claim and
proceeded to dig for diamonds therein, and on
or about the same day discovered a certain
diamond therein, weighing about 28 carats,
which he converted to his own use, and refused to
deliver up to the plaintiff though requested so
to do.
6. The plaintiff claims the said diamond as
his property, and says the same is worth £160.
6. Thereafter, on or about the 7th September,
1896, tne seoond-named defendant wrongfully
and unlawfully sold and delivered the said dia-
mond to the first-named defendant, who still
retains possession thereof, and claims it as his
property, though frequently requested by the
plaintiff to deliver the same to him as tim
rightful owner thereof.
7. At the time of the said sale and delivery
both the defendants knew that the said diamond
was claimed by the plaintiff as his property.
8. The plaintiff has suffered damage in the
sum of itoO by reason of the said wrongful deten-
tion of his said property.
Wherefore the plaintiff claims :
(a) That the first-named defendant may be
ordered to forthwith restore to the plaintiff the
said diamond, or, in the alternative, that both
the defendants may be ordered to pay him the
value thereof, it^SO, the one paying the other to
be absolved.
(») £60 as damages aforesaid, from both the
defendants, the one paying the other to be
absolved.
(0) General reliel
id) Costs of suit.
The following was the plea of defendent
White:
1. The defendant White admits paragraph 1
of the declaration, and says that he is a duly
lioensed diamoud buyer, and that the second-
named defendant is a duly licensed diamond
digger.
2. The allegations of fact in paragraphs 2, S,
and 4 are matters not within his knowledge,
and he does not admit the same, but begs to
refer this Honourable Court to snch proof as
the plaintiff may adduce in support thereof;
but as to the conclusions of law, albeit he
admits that a duly registered bolder of a claim
in an alluvial diamond digging is, while im
possession of bis claim, solely entitled to find
and win diamonds therefrom, yet he denies
that such holder is in law the owner of any
diamond in the soil of such claim until he has
found and woa the Fame, and says that sooh
holder cannot vindicate as his property any ot
the diamonds which may be found and won by
any other person from such daim while in
possession thereof.
3. With further reference to paragraph 4, he
denies that in law the seoond-named defendant
wrongfully and unlawfully trespassed upon tiie
plaintiff's claim, even if the facts be otherwise
as therein alleged, for that the said second-
named defendant was before and on the said
4th day of September in lawful poeseasion of
the said claim under a legal licence granted
to him by the Colonial Qovemment, and
remained in such possession thereafter, until
dispossessed by a decision of the Inspector of
r
168
tbe AllQTial Diamond Diggings in which such
daim ig ftiiaAtecU ^ven under authority of
MetioB6oC Act No 18 of ISSd, by which deci-
ini the aaid claim 'w^&s Awarded to the plain-
tiif, but wbicli decision the defendant says
woMnotand did not confer upon the plaintiff
in law the ownership of any diamond which
the Becond-named defendant may have won
while in poaaesinon as aforesaid of the said
dam.
i The eaid defendaat further says that on the
morning ol the 7th Beptember, 1896, the second-
aimed defendant, being a licensed diamond
digger as aforeaaid, sold to him, being a duly
lieenead diamond buyer as aforesaid, a certain
diaiDond, the property of Uie peller, weighing
sbottt 28 carats, for tbe price of £70 cash ; and
he saya that the said sale was a hana fide and
lawful transaction, effected at a time when he,
the first-named defendant, had no knowledge
or notice of any claim by the plaintiff in
respect of the diamond so sold to him by the
second-named defendant.
6. He admits that on the same day, to wit,
Um 7th September, 1896, but after the said
diamond had been purchased by and delivered
to him, the plaintiff, by his agent, notified to
him, the first-named defendant, that he
claimed the said diamond ; and he admits that
be retains the said diamond in his possession as
his property, and refuses to deliver it to the
plmintiff, and says that the plaintiff has no
right to claim to vindicate or recover the said
diamond or its value from him, the first-named
defendant.
6. Save as aforesaid, he denies the allegations
in paragraphs 6, 6, 7, and 8 of the declaration.
Wherefore he prays that the plaintiff's claim
aaay be dismissed with costs.
The following was the plea of defendant
Madella:
1. Tbe defendant Madella admits paragraph
1 of the declaration, and says that he is a
disuBond digger, duly licensed by the Colonial
Oowemment, and that the first-named delen-
dani is a duly licensed diamond buyer.
2. On the 3rd day of September, 1896, the
defeadaot Madella, duly licensed as aforesaid,
pegged out a claim on the spot known as
Canteen Konje, in Barkly West, being a pro-
claimed alluvial digging, and when he so
pegged out the (aid claim he acted in good
faith, not knowing that the plaintiff had in
£aei theretofore worked the claim, which on the
■aid day was not marked out by pegs to indicate
that the claim was held by the plaintiff, who is
aaotber duly licensed diamond digger.
S. The said defendant, by his son Isaac
ICudella^ worked the claim so pegged out bf
him as aforesaid, and his said eon on his behalf
did on the 4th day of Beptembe-, 1896, by
industry and labour, find and win in the said
claim a certain diamond, weighing about 28
caratp, which thereupon became and was the
property of the said defendant, to whom the
said diamond wa^ delivered by his said son.
4. On the 5th day of September the plaintiff
gave notice to tho defendant's said son that he
laid claim to the aforesaid claim, and to the
diamond found and won therein as aforesaid,
and his said son conveyed such notice to the
said defendant.
6. On tbe 7th day of September the eaid
defendant sold and delivered the said diamond
for £70 cash 1o the defendant White, as he, the
defendant Madella, lawfully might do, and did
not give notice to the defendant White of the
claim advnnced as aforesaid by the plain tiif.
6. The defendant Madella juf^tifies hia afore-
said sale of the said diamond in that it was as
aforesaid found and won by him, through and
by his son, while he, the paid defendant, was
hoMing the said claim in irood faith under
lawful licence, and that he had a good title
thereto by lawful possession of the clai'ii and
by finding and winning the said diamond as
the fruit of his labours and industry, and such
title or any other to the paid diamond the
plaintiff nt ilhtr has nor ever had, nor has the
plaintiff any right to have this action to
recover the value of the said diamond for the
said defendant.
7. Thereafter, on or about the 11th day of
September, the Insvector of Claims, acting under
and by virtue of the authority conferred upon
him by section 6 of Act No. 18 of 1886, decided,
after inquiry, that the aforesaid claim m-st be
awarded to the plaintiff, but the said InApector
neither did nor could confer upon the plaintiff
any right or title to or in respect of the said
diamond so found and won by the defendant
Madella as aforepaid.
8. The said defendant admits that he refupes
to pay to the plaintiff the value of the paid
diamond.
9. Save as aforesaid, he denies the allegations
in paragraphs 2, 3, 4, 6, 6, 7 and 8 of the declara-
tion.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
The replication was general.
The following evidence was led for the plain-
tiff:
Henry Adams stated: Plaintiff, diamond
digger, Barkly West, diggings at Canteen
Kopje, where I held one claim last September.
I took licence for it on 28th May, 1896, and it
was still running in September. I paid the
164
lioenoe monthly. When I took it out I pegged
off the claim. I worked the claim personally
ahout a month, and found no diamonds what-
ever. I then took out another licence, and went
to work in the bed of river lower down. My
original claim was worked by my brother for
leas than a fortnight, found nothing and
stopped work, and then I left Hendrik
Ramabotta and adjoining digger in charge.
On 6th Be tember I ({ot information and went
over to the claim, where I found Isaac Madella,
son of defendant It was early, and work had
not yet begun. I told him to stop work there,
as claim was mine. He refused, and asked me
where my pegs were. I said, "1 hey were in a
few days ago." He replied that he had found
no pegs, and so had pegged it off. I saw his
pegs in the ground, but no sign of my own. I
had seen my pegs in the ground in August.
His pegs stood on exactly the same spot as
mine had done. Claims are 30 fett by 60 feet,
and there was nothing in the nature of the
ground to guide the peggers to the exact spots
where my pegs had stood. On the 5th Septem-
ber I caused my agent, Donovan, to write a
letter to Isaac M adella. (Copy produced. No. 1 . )
Subsequently I got an interdict.
Cross-examined by counsel for White : I
think I paid the licence for September a few
days after it was due, I think on the 6th or 6th,
and after I heard that Madella was working in
my claim. It was after I had seen Madella
working that I went and renewed my claim
licence. I had taken out another licence on
another claim. I left the claim afterwards
peirged off by Madella becauFe the water gave
out. In June I dug at three separate nlaces on
the licence I had taken out in June— for the
other side of the river. In July and August I
was working on this side of the river, and
required no licence. My brother worked the
Canteen Kopje licence in June for me. My
brother found no diamonds on that claim. I
told Bamabotta to look after the claim, and
see that no one used it. He is my next ueigh-
bour, and another native is eo on the other side.
I gave Ramabotta leave to use it as a deposit-
ing site, and to sink a well. I never abandoned,
but have sold the claim for £6— that was in
September.
OroflS-examined by counsel for Madella: I
know Jacob and Andries. They were in my
employ at Canteen Kopje, and also went down
the river with me. I did not tell them I was
leaving because I could find no diamonds. I
left Jacob to finish washing the loose ground.
If he says that when he left my pegs were not
in, it is false. Hendrik Ramabotta wsnt to
Colesberg, 1 have since heard, but his partner
was in charge.
William Franklin stated : Inspector of Claims,
Barkly West, produce register. Plaintiff took
out licence 28th May, for Klipdrift diggingf>, of
which Canteen Kopje is a portion, and it was
continued until 28th September. In my
capacity as inspector under Act 18 of 1886,
section 6, held investigation as to the owner-
ship of this particular claim with two assessors.
As a result we awarded the claim to Adam a,
the present plaintiff.
Cross-examined by counsel for Madella (Mr.
Ward): Sam Madella has also a licence for
Klipdrift diggings. He to k out one on lat
September for a month. Adams renewid his
on 5th September, i.e., from 28th August^28th
September.
Per Cvr, : When a person takes out a licence
he can go and dig in any place in the digging
not pre- occupied. Natives steal pegs for fuel,
and it is very difficult to catch them. The law
(Act 19 of 1883, section 28) gives a months
grace for payment of licence, eo that payment
on 5th September would be within the time for
renewal.
Hendrik Ramabotta stated : Digger at Klip-
drift. Know plaintiff and the two Madellas.
In June last was working next claim to plain-
tiff at Canteen Kopje ; and I have been working
my dame claim ever since. I lemember plain-
tiff leaving his claim. He left it in my charge,
and gave me instructionB about it. I had per-
mission to enter upon the claim to f^ink a well.
This was for my benefit, but it would belong to
Adams when he returned. When plaintiff left
his four pegs were in. I went to Colesberg. I
think, in August. I was away three weeks, and
returned the same month. I then went to
another claim. When I left for Colesberg
plaintiff's pegs were still in. On my return I
did not see the pegs ; they had been removed.
When I was at Colesberg I left i eople in charge
of my claim, viz., my three partners. The
plaintiff's pegs were removed from his claim
during August. In beginning of September I
saw Isaac Madella on plaintiff's claim — it was
a Friday, before breakfast. He began to work
there with convicts. I told him it was Adams's
claim. He said. " No ; Adams is not paying for
this one ; he is working another claim lower
down," aod he continued working. Adams had
sunk a shaft, and Madella was working in it.
When I spoke to Isaac Madella, I knew nothing
abuut a diamond having been found.
Cross examined by Ward : I did dig a well, I
found water easily. Adams knew this. I saw
/ dams's brother there. I was in charge of
claim when Adams left. I know August Psama,
who worked next to Adams's claim. I was not
there when the diamond was found. I was at
my other claim, which is some distance away
;65
At about twelye noon I was told that the
cvBTictB bad found sometbiDg. It was not
after that that I went and epoke to Mad< lla. I
did not speak to him «fter I heard of tie find :
it was not «3f diamond.
NoiMalope stated: DigK r. Klipdrift. Know
plsintiif and Madellav. Was partner of last
witness in claim next to plaiDtiff*B. Recol-
leeted plaintiff working there. He left to go
lower down river, leaving his claim in last
witnesses charge. I was present. We were
allowed to go npon that claim to sink a well.
When plaintiff left, I Faw three of his pegs
itill in. I remember Ramabotta went to Coles-
berg. They were up then. I saw the claim
then. L was then working at another
elaim about 200 or 800 yards away. When
Bamabotta returned from Colesbeig we noticed
that only one of the pegs was left, and that was
lying on the ground, not at its poper place.
This wa^ 4th September— a Friday. I went on
that da¥ with Bamabotta. I »>aw Isaac Madella
there. He was washing at another claim close
bf, and he was just about to move to Adams's
daim. He did move there ; some convicts were
already at work for him, I heard last witness
ten Isaac that the claim was Adams's. Isaac
replied, '* He does not pay for it." Ramabotta
sad I then went to our new claim, and left L^aac
it work. When Ramabotta was at Colenberg I
worthed our daim there for a few days. Jacob
and I were in ohaige.
Cross-examined by Ward : I don*; know how
1 know it wau 4th September; but I did know.
Same day about midday I heard the bigdia-
Bood had been found.
Isaac Madella stated : Son of defendant
Xadella. On 29th August I went to the claim
sad pegged it out It is the claim in dh>pute,
aext to Hendrik Ramabotta's. I worked there,
ssd on AiYi September I worked there and found
t diamond of *^8 carats. I handed it over to my
father.
CraEa*examioed by Ward : When I first went
oat the claim wa*! pointed out to me by August
Pnnia, in D«movan's service, who was working
s neighbouring claim. There were no pegs on
Adama's claim. August Prama moved his own
psss on the same day from Adams's claim back
to his proper boundaries. I waa working under
ny father's licence and for him. I saw Rama-
botta when the claim was pegged out, and again
ifter diamond waa found. On the second ooca-
HOC he said, " Adama left the claim because it
<lid not pay him, and now you have found a dia-
■Mad." I saw Adama on 6th. He asked by what
iDthority I worked there. I said " My father's."
He said it was his claim. I asked him to show
me his pegs. There were none. I got Donovan's
letter of 5th September that same morning.
Per Cur, : Neither Ramabotta nor Nol Malope
told me before finding the diamond that it was
Adams's claim. I contradict theoL I am sure I
had no conversation with Malope or Hendrik
RamalK>tta before the diamond was found. I
saw a well in claim with a little water in it. It
had been sunk for prospecting purposes. It was
11-12 o'clock when I found the diamond.
Samuel Madella, sworn, stated: Interpreter,
Resident Magistrate's ^ourt, Barkly West. I
am a licensed digger. I remember Isaac, my
son, bringing me a diamond on 4th September
from a claim Adams had worked in a few
months before. I had sent him a few days
before to peg out that claim. I had prefiousiy
inspected the claim, and found it to be
abandoned. I ^old the ttone to defendant White
on 7th September, for £70. On my informttion
I thought this a fair price. He paid me incafh.
I got Donovan's letter to Isaac on the 6th, and
so I knew the property in the diamond was going
to be disputed.
Cross-examined by counsel for White : It was
between eleven and twelve on MondaT that I
went to sell to White, but I did not tell him of
Adams's claim. I saw AHams in the bar which
is next to White's office when I went to sell.
Case for plaintiff closed.
For the defendant White,
Clarence Reginald White stated: Licensed
diamond dealer at Barkly West. Enow plain-
tiff. I remember buying the diamond for
£70, which was a fair price. I have had a
good deal of experience. Madella came to
me about 0.3 ) a.m. on that Monday. I bought,
and iut-t after that Adams came in to me,
and 1 bought some other diamonds from
him. Adams said nothing to me about
Madella's diamond. About a little after
one p.m. on same day I saw Donovan, who askr d
me whether I had bought a diamond from
Isaac Madella. I said, " No." I did not know
that Isaac was working for ^ Sam " Madella.
I have had the diamond valued by Brink and
Hirachhorn, and they each value it at 60b. per
carat (£70).
Cross examined : I heard on the Friday that
Sam Madella had found a diamond, but noth-
ing about a dispute, nor did I hear on Saturday
night that there was a claim by Adams.
/Vr 6Vr. : Ma 'el la bn>ught his licence when
I bought* I made no entry in his register, and
don't know whether he brought it. 1. had
bought stones from Madella before.
White's cats closed.
For the defendant Madella,
166
August Pflama stated : Digger, Barkly West.
Know claim where Madella fouod the diamond.
I worked on next claim. I pointel out tlie
claim to Madella. I was at the time using
water out of the well on it, and portion for
depositing. My pegs were ezteoded out on to
it When Madella came there T did not move
my pegs hack. Madella put in his pegs
in spots which I pointed out to him. I
pointed it out to Madella as a free claim.
Jacob stated : Enow plaintiff and his claim.
Remember his leaving that and moving down
the river. I was the last to work tht re for him.
He left me to work the loose ground. I removed
all the implementa when I went. I was there
three days after he left. I must have seen pegs
if they had been there.
[Psr Cnr, : Bven while he was there I paw no
pegs. T contradict all witneseea who say there
were pegs there.]
Gross-examined : Plaintiff did not dismiss me.
I left because I did not wish to work monthly.
Per Cur, : Adams did leave his brother there
after he left, and it was wit\ him I was working
to clear up. I am now working under a digger
at the river.
Herbert Rees stated : Olerk to Inspector of
Olaims, Barkly West. I remember Adams
coming to me on 6th September at nine a.ui , as
ioon aa ofiSce was open, and renewed his iicence
for Klipdrift diggings. It had been reported to
me that he had been working on a claim down
the river. His Klipdrift licence would cover
any river claim on the Barkly side of the river.
Adams said nothing to me about any dispute.
On Monday, 7th September, Donovan saw me
and asked me about steps to interdict, &c.
Madella's case closed*
The Court gave judgment for plaintiff against
White to deliver the diamond— with coats. No
order as to Madella's costs.
Against this ju'*gment the appeal was now
made.
Mr. Schreiner, Q.C., (with him Mr. Graham)
for appellant: (Respondent in default): The
diamond was found by Madella in the lawful
claim of Adams and was sold to White, who
waa a duly licensed buyer, and purchased with-
out any notice that there was any claim to the
diamond.
De Villiera, C.J. : In Pruton and JHscon v.
Bid$nU TruHee (1 App., 828) the Court held
that a claim of this kind gives a personal right
to dig for diamonds.
Mr. Pchreiner: Judgment of Laurence, J.P.,
in original case of PreHim, Ji'o.i is an attempt
to apply the doctripe of pwnarpbip to the claim
law of this colony. Van Leeufcen (Kotz^'s
Edition, p. 211), whom he quotep, dofs cot
support him
Chief Jui-tice: I have always considered the
right of a claimholder to diamonds dependent
on his winning them. In it not a perscmal ser-
vitude to dig for diaiuondc 7
Mr. Schreiner : Not a praedial servitude nor
one of the personal servitudes specifically men-
tionc d in the bookp, which it is difficult to add
to. It is rather a modern right analogous to a
persona Ijserv it ude. S A, Loan and Morigoise
Agency v. •. OJH.^Bnnk (J. 6, p. 181) lays
down that a licence to dig for diamon !s is not
an interest hyp<ithecable under the law of this
colony. As to Voet (41, 1, 29), Laurence, J. P.,
is in error in his construction of the passage.
Emptor does not refer to the buyer of the
fruits; Voet it, dealing with the purcha^r of
rei liena.
It is a question of very first principle, that a
man can vindicate his own property but cannot
viudtcate property that is aot his. What gave
Adams his tide t«> the diamond ? He expended
no labour in winning it nor was any expended
on his behalf. Judgment for damages would
be given against the tre^passer, but there is no
continuity over against White. There is no
ownership in diamonds not taken out of the
earth. In assessing damages for the trespass,
the value of the diamond would be taken into
consideratior . White is an innocent purchaser
for \alue and not liable.
De Villiers, 0. J. : This action was brought in
the Court below against White and Madella, to
recover a certain valuable diamond or its valae.
The action U in the nature of a vindieatio and
the plaintiff can only succeed upon proof that
he is the owner of the diamond, and is therefore
entitled to recover it, not only from the person
who found it but from the person to whom it
was sold. It is not necessary to decide whether
the plaintiff has a good action for damages
against Madella, but the peculiarity of the judg-
ment appealed against is that Madella, who
found and f^old th«^ diamond, is absolved alto-
gether, and White, who bought it without
knowledge of any trespass, is ordered to pay
the value to the plaintiff. If the action had
been brought for tresttass against Madella, it
does not follow, as the learned Judge-President
seems to assume, that assuming there was a
trespass, the plaintiff could not recover the
value of the diamond from the trespasser. In
the case of J)e ViJUers v. Van Zyl (Foord, p. 77)
certain young wild ostriches had been appro-
priated by the trespasser and in the action for
trespKSB, the vt^lqe o| ^p pftrichee ^as th^
r
167
<BIM
nemie of dmmAg«8 awarded. In the present
eue therefore the plaintiif woald not be with-
oot remedy if be was the lawful occupier of the
diim, tithongh be waa not the owner of the
dkraoBd. The error into which, with dae
mpeet^ the Court below has fallen is to treat
fte holder of a claim in an alluvial digging sb
tbe tbeolnte owner of the soil, and of all
diamoDds therein. The effect of previous deci-
aiou of this Court is to regard such a claim-
bolder as having a right to dig for and win
(iiUMMidSt but not as having any fws in re.
Upon finding a diamond he becomes tbe owner
thereof, and as the lawful occupier of tbe land
be may prevent trespasses thereon and may
noover damages for such trespasses, but if
nine one else has found a diamond and sold it
to SB innocent purchaser, he is not entitled to
follow it into the hands of such purchaser. I
lesTe oat of consideration the circumstance
that it is by no means dear that Madella was a
tMpasKr. He kona fids occupied the dnim in
the belief that it bad been abandoned. Sub-
nqneatly the Inspector of Claima decided that
the idsintiir still had the right to work the
cisiBi BotwithstandiDg that the licence money
«isonpsid,and that the plaintiff bad not for
MM-time worked it It is exceedingly ques-
tnsUa whetiier that decision would have a
i^^tnepeetive effect-, • o as to prove that Madella
*u a trespsaeer during the interval, but asi tbe
Mtioo Is act for trespass tbe point is of no
ioiportsnoe. For the reasons already given the
appeal moat be allowed with costs in this Court,
tad judgment entered for the defendant with
mti in the Ck>urt l>elow.
[Appellant's Attorney, C. C. Silberbauer.]
DO PBBf Z V. JAAB0.
]
1897.
May 13tb.
Uagistrate's jarisdiction — Summons —
Specific performance.
The mere fact that a summons in a
Mag isirate's Court incorrectly ataiee
that the claim is for specific per^
formanee is not sufficient to oust the
Magistrate's jurisdicium if it
appears from the summons that
Ae real object of the action is to
obtain damages for breach of con"
tract.
This was an appeal from a decision of the
larident Magistrate of Philip's Town in an
istfoo in which the present appellant, plaintiff,
in the Court below, sued the defendant, toe
present respondent, for delivery of a certain
horse or £16 damages.
Tbe summons called on tbe defendant to
answer H. C. du Preez **in an action to com-
pel specific periormance of a contract." The
contract alleged was the barter of a horse ; and
tbe summons alleged that plaintiff bad
tendered bis horse and required delivery by
defendant of the horse to be exchanged by him ;
that defendant bad refused to deliver and had
caused damages to plaintiff in the sum of £16.
Tbe summons claimed an order compelling
dt*fendant to deliver the horse or to pay plain-
tiff £16 as bis damages.
Tbe defendant excepted to tbe summons on
the ground that specifie performance was
claimed, and that the Magistrate bad no juris-
diction.
The Magistrate sustained tbe exception, and
the plaintiff now appealed.
Mr. Searle Q.C., for the appellant: There is
nothing on tbe face of tbe summons to show
that the animal was worth more than £90.
Mietje v. Matyele (6 Shell, 421). The only sub-
stantial difference between that case and this,
is that OB tbe face of tbe summons the value of
tbe animal is not given.
The Chief Justice : But tbe real point here is,
that there is a claim for specific performance.
Mr. Searle : Disiin v. Lamont ;6 8beil, 487) is
strongly in point on that. Here substantially
the Court was asked to give damages.
The respondent did not appear.
Tbe Court allowed tbe appeal.
Tbe Chief Justice said : The summons prays
that the defendant may be ordered to deliver
the horse or pay damages to tbe plaintiff. Now
I tbink it is a misuse of words to call this an
action for specific performance. The mere
effect of the use of these words would not oust
the jurisdiction of the Magistrate. In this case
1 have no doubt that these words are used in an
improper sense. 2> stin v. Lamont seems
exactly in point. The appeal will be upheld,
with costs in this Court, and the case remitted
to the Court below to be hean| on its merits.
[Appellant's Attorney, Ous. Trollip. j
BUBrON V. KNIOHT. { jjay Wth.
Master and senrant— Act 18 of 1873|
sectioD 1 — Construction.
This was an appeal from a decision of the
Assistant Besident If sgistrate, Cape Town.
led
The appellant saed Roee Knight, the re-
spondent, for damages for breach of contract,
alleging that she had agreed to enter bis service
as a domestic servant for two years under a
written agreement signed in London on 20th
June, 1896, and in Oape Town n 28th July,
1896.
The defendants agent raised two exceptions :
(a) That the agreement sued upon having
been made in England, and containing a penalty,
required to be stamped.
This exception was overruled.
ih) That a contract entered into in tbe Colony
for any period exceeding a year required to be
entered into before a magistrate.
This exception was sustained with costs.
Against this judgment the appeal was now
made.
Mr. Graham for appellant: The exception is
founded on Act 18 of 1873, section 1, but that
only applies to quasi-criminal actions or actions
under the Masters and Servants Acta for penal-
ties.
De Villiers, C.J. : Another point 'is very
obscure in the wording of the section. What
does " unless, &9.," refer to 7 Does it not refer
to the written contract ?
Mr. Graham : Moreover, it is not dear from
Sayers v. Tkorne (J. 7, p. 243), that the con-
tract need be entered into before a Magistrate.
Ace 15 of 1866, Ch. 2, section 1, is unrepealed,
and there was ample proof to satisfy the Magis-
trate that the contract had been entered into.
The original contract was entered into in
London, although it wa« re-signed here. If it is
valid for one year only, not more than £4 can
be claimed. I am willing to accept that.
The Chief Justice said: I am clear that the
Magistrate in holding that the contract is
wholly invalid was in error. The utmost that
can be said is that it is invalid beyond twelve
months. But seeing that Mr. Graham is willing
to treat it as extending only for twelve months
the Court will give judgment for ^4, whioh
would be the measure of damages in that case.
The appeal is allowed, with costs in this Court,
and judgment given for £1 with costs.
[Appellant's Attorney, D. Tennant^ jun.]
SUPREME COURT.
[Before the Right Hon. Sir Hbkbt db Vii.-
LIBK8. K.C.M.G. (Chief Justice), Hon. Mr
Justice BUOH AN AN, and Hon. Mr. Justice
Maabdorp.]
MAGISTBATB'S CASB REVIBWHD. | jj Jy 'i^\|j
Mr. Justice Maasdorp said that as judge of
the week a ca e had come before bim for
review in which a Resident Magistrate bad con-
victed one Alleta Kruger for a contravention of
Act 21 of 1894, Bection 2. Tbe Resident Magis.
trate had sentenced the accused to thirty days'
imprisonment, including ten days' solitary con-
finement, and three days in each week spare
diet. As there was no provision in this Act for
the imposition of solitary confinement, that
portion of the sentence must be quashed.
BABBABALL V. BABRABALL.
This was an action for divorce on the ground
of adultery instituted by Percy Claude Barraball
against his wife.
Mr. McGregor for applicant.
Reginala Barry, clerk in charge of tbe mar-
riage registry in the Colonial Ofiice, produced
the regi ter of the marriage of applicant with
Imily Lavmia Thomas on 29th July, 1891.
Percy Claude Barraball said be was married
on 29th July, 18^1, and after the marriage he
lived at Simon's Town. On 5th March, 1896, he
left for Johannesburg. He left owing to certain
differences he had had with his wife, and also
in the hope of getting work there. He got work,
and up to November of last year sent his wife
money for her support In couEequence of
certain information, he left Johannesburg for
Simon's Town on 14th March of this year. He
saw his wife on 28rd March at the house of
Price Williams, a grocer Observatory- road,
when she admitted having given birth to a ohild
on 20th February. She told him who was tbe
father of the child : Walter JoncF. There were
two boys of the marriage, the custody of whom
he wished to have.
Dr. Lawrence (Obeenratory-road) said he was
called to a house in Obeervatoiy^road on 20th
February to attend to a Mrs. Jones. Mn.
Jones was delivered of a child. The photo pro-
duced was that of the lady who took the name
of " Mrs. Jones."
Mr. Justice Buchanan : Who paid you your
feesf
Dr. Lawrence : I was never paid«
The Chief Justice : Did you apply for jo^
feesf
r
m
Dr. Ltwrenoe : I looked for JoneSi but he was
■Inji oat, ao I gave it np.
The decree of divorce as prayed for was
gnatad.
[PlainiiJf*a Aift^xney, 0. 0. Silberbaaer.l
Aote-aaptial coDtract — Registration-—
Matrimonial domicile— Husband
and wife — Commnuity of goods —
InaolTeDt Oirdiuance— Household
fhniiCiue Creriiiora' meetipgs.
Where two spouses, not domiciled in
/Am colony, had married in another
amntry irithaut community o/good^t,
tke wi/e ijt entitled, upon the inwl-
9mc0 Af/ her huxbaud in this cohuy^
te cirnhn goods which can be clearly
pnwed to be her eeparate jfroperty^
although mo insfrument in the nature
of an ante-nuptial contract has been
registered in this colony,
A, trusty in insolvency is not euiitied
to sell hmnehald furniture alleged by
him to behpng to the insolvent without
direction to that effect given by credi*
tors, in terms of the 95M section of
the Insolvent Ordinance, at a duly
convenvd meeting held after the
seoond meeting of creditors.
Thia WW an applioation to make absolute the
file n^i for |ui interdict rsftraiiuDg the re-
■Msdeat, ,In his capacity as trustee of the
iuolTent^tate of petitioner's husbaqd, from
wUiiig oertmin housel^old effects and jewellery,
d(unied hj petitioner as being her separate
PVOparty, flDd for an or^er tt^at respondent do
W the costs personally.
Mr. Searle .Q.C., for the applicant^ Mrs. Mary
BsmsteiD.
Mr. Schreioer, Q.C., for the respondent, Mr.
8. /ames Foeter, trustee in Uie insolvent
cikate of Nathan Bernstein, appeared to oppoeoi
The applicant's affidavit (dated 20th April,
1^7) set forth that petitioner and her husband
We aianried out of community of property in
U88, .at Memel, in Germany (translation of
tate-nuptial contract annexed),* and that at
tlie time of marriage petitioner was possessed of
certain furniture, and other i^ssets as enumerated
IB the. ante-nuptial contract; some of these
Z
petitioner subsequently sold, and out of the pro-
ceeds petitioner bought other articles which ihe
brought with her to the Colony.
That when petitioner came to the Colony
with the insolvent, no registration of the ante-
nuptial contract was effected in the Deeds
Office, the parties being under the impression
that they would be sufficiently protected by
having the contract translated by the British
Consul at Memel, and giving notice to him of
the marriage being out of community of
property.
That on the J 3th March, 1897, the estate of
Nathan Bernstein, the husband, was seques-
trated, he being then and now in the South
African Republic.
That the first meeting of creditors was held
on 24th March, 1897, when no creditors ap**
peared ; that the second meeting waa held on
the 31st March, when Messrs. Lewin and
Hudson, Vrede k Co. alone proved claims,
and Mr. James Foster was elected trustee
That the only resolution then passed was for
this appointment of the trustee authorising
him to act also as auctioneer, and to charge
the usual fees.
That the third meeting had not been held.
Xha^ on the 2nd April the messenger of the
Resident Magiatrate's C^urt placed under
attachment the furniture and assets belonging
to petitioner, when petitioner informed the
messenger that the goods wore her property,
and that she wan married to the insolvent out
of'oommunity, repeating this in a subsequent
letter to the messenger, of which a copy was,
sent to the Master of the Supreme Court.
Th|l||Jhe trustee has advertised the assets of
the insolvent estate for sale at public auction
on 24th April, including the assets belonging to
petitioner attached as above, but that peti>
tioner protested in a letter to the trustee, to
which the latter replied that as there was no
registration of the ante-nuptial contract in the
Deeds Office the attachment could not be with-
drawn.
That only the creditors who had proved were
aware of the marriage being out of community,
and the petitioner's husband had informed tliem
thereof.
That the trustee has not complied with the
96th section of thelnsolvent Ordinance in so
including the household furniture in the
movables to be sold without getting the instruc-
tions of the creditors.
A ru e nisi was granted in chambers on the
23rd April, 1897, to operate as an interim
interdict in respect of the furniture and assets
claimed by Mrs. Bernstein.
170
On the 26th April the trustee made a replying
affidftTit, stating that he held the powers of
attorney of the only two creditors proved, and
the insolrent had stated that he had no other
creditors; though the insolvent attended no
meetings of the creditors.
That deponent, after his election, asked Hud-
son, Yrede Sc Co. for instructions, stating that
he had heen informed that they were told that
the furniture in the insolvent's house belonged
to his wife under an ante-nuptial contract, but
that these creditors denied any such knowledge,
and directed deponent to realise the furniture,
whereupon deponent duly advertised the sale,
and issued a notice calling the third meeting of
creditors.
That no application has been made by in-
solvent for permission to retain any part of
the furniture, but that Mrs. Bernstein has
claimed the furniture.
That no resolution of creditors at the third
meeting to allow the insolvent to retain his
furniture could be passed without special notice
having been given for the purpose, In terms
of the 98th section of the Insolvent Ordinance
(see also /fi r# ChUipptni ; 2 Seule, 218), that
Hudson, Yrede k Co. could alone vote in num-
ber and value, and could therefore alone
sanction such retention, and that deponent
represents the said creditors.
That it is a common practice in insolvent
estates to sell the furniture simply on instruc-
tions from the principal creditors, especiaUf
when there is no application by the insolvent
for leave to retain.
That under all the circumstances deponent
held there was no necessity to delay the settle-
ment of the estate or to incur the expense of
advertising and holding special meetings ; and
he submits he has acted lawfully in accordance
with established custom, in good faith, and m
the interests of creditors.
That before the date of the affidavit by Mrs.
Bernstein an ofEer was made to him on her
behalf to pay £60 into the estate on condition
that Hudson, Yrede k Co. should abandon their
claim to the furniture and consent to the
insolvent's release, which ofEer was rejected.
There was also an affidavit by Mr. McKinley
(representative of Messrs. Hudeon, Yrede k Co.
at Oudtshoom, where the insolvent lived)
stating that it was always his belief that the
furniture of the house belonged to the insolvent ;
and an affidavit by the managing partners
of the said firm stating that the advances to
the insolvent had always been made on the
strength of there being no prior hypothec or
preferent claim on any part of his assets and in
ignorance of the said ante-nuptial oontraet or
of any claim by Mrs. Bernstein on tha fur-
niture.
Mr. Schreiner, Q.C., for the respondent:
Stejfn V. Stern's Tmrt^e (Buch. 1874, p. 16)
settled the law of the Colony. That case gnve
rise to the passing of Act 21 of 1875, which
contemplates registration of contracts entered
into abroad as well as in the Oolony. Seotioo
9 gives same force and effeot to foreign qoo-
tracts if registered here. In Scelin v. Begittrar
of Deed* (6 H. Ct., p. 108) registration of si
foreign contract was ordered.
Chief Justice: Sappoeing a marriage in
entered into in a country where there is nooom-
munity of prope'ty, what are the parties tn do 7
Mr. Schreiner: They should execute a oon-
traet here. Schoombit v. Schoowhie^t IthmU^m
(6 J., 189). There the Court gave leave to
register a contract entered into after marriage.
Chief Justice : That would be a post-naptlnl
contract, and the Act speaks only of mte-
nuptial contracts. How does the non-regiaim-
tion affect the question of forfeiture of
property 7
Mr. Schreiner : Creditors must be protected
and not defrauded. The old Plac9.at of 15411
protected traders to that extent. AMhmCt
EmecHtrxm v. Bl^hi (4 J., p. IM) shows the
same doctrine. The contract in that ease waa
entered into before Act 31 of 1875, It la
admitted that the law of Germany, which
applies in this case, is that husband and wife
are married in community unless it is excluded.
Act 21 of 1875 is definitely intended to apply to
foreign contracts. Doctrine put forward by
applicant is a very dangerous one. Van der
BffVs Auignee$ v. Van der Bjfl and others (6
J., 170).
Chief Justice : rhat was not a case in which
the wife claimkl property which was here
before marriage. Can ehe forfeit by non-
registration property which Ih clearly her own 7
Should there not as a preliminary point be a
resolution to sell the property arrived at at
some meeting of creditors 1 '
Section 98 is for the protection of the
insolvent. The Court should require strict
compliance. Other creditors might have
proved if it, had been known that ^hfa
matter would be discussed at the third
meeting. This being usually discussed at
a third meeting the insolvent might have
delayed application for furniture until netioe of
third meeting had been given. In re CMiippifii
(2 S., p. 218).
Mr. Searle, Q.C., for applicant: Sections
66 and 77 of the Insolvent Ordinance, taken
together, show that any matters aJfecting the
171
of the wC%ie niHt be settled at
thefldrdniMtiiig. ** Shall and may be lawfur*
is peremptory. EdmeadeM y. Ateher (J. 3, p.
Ml). What are pariiea to do who liave been
Miried abroad ? The Ck>nrt would not allow a
pott4nptial ooniraet to be entered into.
Chief Jnetioe : The Court has repeatedly held
Ithat there ia a taoit oontraot on marriage to the
jiieet that the law of the domieile shall attach.
iWhen partiea are allowed to execute a contract
hoe, is it not simply allowing registration of
Ihii taeit ante-nuptial contract ?
Mr. Searle : The Court has never allowed a
eeatnet to be ezeoated after marriage, except
lAea there haa been some written inetrument
falcrsd into previoosly, which is either incom-
plete or wanting in some formality. It did not
SMisar whether the parties in Setilg v. RcgU"
tnr §f needs (Q. % lOB) had or had not gone to
Gsnaany from the Colony with the intention of
getting married and coming back'agalo; in-
rtmetions had been glTcn and a document drawn
op, but not signed. Act 21, 1875, was pot in-
tcadtd to do awi^. with the law of matrominlal
domieile ; section 9 referred only to peiaoos who
had temporarily left the Colony.
As to proof ^lat the property claimed belongs
to applicant, the documents were entered into
before proper officials in Germany, and certified
to by a BiWah Consul ; they specify articles and
applicants statement identifies them. It is not
aeeeasary that a schedule should be attached to
the contract ; proof may be giTcn aluinde. As
to Van dir ByVi caae. Van der Byl was domi-
ciled in tlie Colony. In Atchet^ ?. Blyihe there
was <Hily ooDstruotive notice of the contract,
but here there has been actual notice.
Schreiner, in reply cited. In re AH and mfe
(S Sh., p. 480) ; Voet (28, 2, 60, 61) ; In re Levi
(6 8h., p. 227). ProcUimatioo, 12th July, 18*^2.
/?. J- V.
FeeUa (May 17Ui).
The Court decided that the interdict restrain-
i^ the trustee from selling the furniture and
jewellety, be continued, pendiog an action to be
forthwith brought by the applicant to establish
her ownership.
The Chief Justice said: The main
qaestion to be decided is whether, in the
eaae of spouses who were not domiciled in
this colony at the time of their marriage, and
who were married in another country without
eommunity of goods, Hit wife is entitled upon
the subsequent ihsolyency of her husband in this
eoloBy to claim goods which can be clearly
profed to be her separate property, although no
iastnunent in the nature of an ante-nuptial con-
tnct has been rc^gistered in this colony. No
qosstion arfpea }n this pi|8e m to Ijypotheoations,
which would, of course, have to be decided
according to the law of this colony, where the
distribution of the husband^s assets takes place,
nor is the case complicated by considerations as
to whether the law of the matrimonial domicile
can affect land situated in this colony. The
simple question is whether the applicant, who
wa^ married to the insoWent at Memel, in
Germany, by ante-nuptial contract, excluding
community of goods, but not registered in
this colony, is entitled to claim house-
hold furniture and personal jewellery alleged
to belong to her. The trustee of her husband*s
insolvent estate denies her right, on the ground
that Act 21 of 1875 renders ante-nuptial con-
tracts invalid without registration. In my
opinion, however, that Act applies only to con-
tracts executed in this colony or (if executed i
elsewhere) by persons domiciled in this colony.
The 9th section, upon which reliance was
mainly placed, does no more than to allow
contracts executed elsewhere than within this
colony to be registered -here even if not
originally executed before a notary. There is a
further provision that if a notarial copy be
deposited in the Deeds Registry Office the con-
tract should have the same effect in regard to
creditors in insolvency as if the original had
been notarial, but this provision would be quite
intelligible if it were confined to the contracts
of spouses whose matrimonial domicile is in this
colony. It would by no means follow that the
contracts of persons who were married else-
where, and whose matrimonial domicile was
elsewhere than in this colony, cannot be regis*
tered here. There is nothing to prevent their
registration in the Deeds Registry, but of
course, if it is proposed to effect it after
marriage it can only be done with leave
of the Court Such registration may
be useful to facilitate proof of the
wife's ownership of goods in case it should after-
wards be disputed and would be necessary for
the purpose of establishing any legal hypothe-
cation which the wife might afterwards seek
to establish against her husband*s estate. But
for the purpose of establishing the applicant's
ownership in the goods claimed by her regis-
tration is not necessary. If such ownership has
accrued to her by the law of the matrimonial
domicile non-registration of their ante-nuptial
contract whether the contract be express or
tacit would not operate as a forfeiture of her
ownership. Proof of such ownership may be
difficult Dut the wife must be allowed to give
it The question which I stated at the outset
must therefore be answered in \h% affirmative,
and the interdict restraining the trustee from
selling the furniture and jewellery must be cpu-
/,
172
tinued pending an action to be forthwith
brought by the applicant to eftablish her
ownership. This being the view of the Court
upon the main question, it is unneceBsary to say
much upon the question whether the trustee
was justified in advertising the furniture for
sale upon the private iuBtructions of
the creditors who had proved their
debits at the second meeting. In my opinion
h cdirections contemplated by the 96th section
of the Insolvent Ordinance are directions given
at a duly convened meeting after the second
meeti dg. The two creditors who had proved at
the second meeting had no right to give private
instructions for the sale of the furniture, and
the trustee ought not to have acted on those
instructions. He contended that the furniture
did not belong to the insolvent's wife. If this
contention was correct the furniture must have
belonged to the insolvent himself, and could not
be sold except upon formal directions given by
the creditors at a duly convened meeting
assembled. As to the costs of this application
they must abide the nsult, but it must be clearly
understood that the trustee will not be expected
to defend the action if he should be satisfiid that
the applicant's ownership of the goods is capable
of clear proof.
Mr. Justice Buchanan said: It has been
decided in this Court more than once that the
incidents of a contract of marriage, governed
by the law of the domicile of the parties at the
time of marriage, cannot be altered subsequently
by a change of domicile. By the law of the
domicile of mat riage the wife is the owner of
certain property. The question raised in this
case is a question of ownership, and nothing
more. In my opinion the wife has not lost the
dominivni of any property which was vested in
her before she came to the Colony. As to the
98th section of the Insolvent Law, it is dear
that the trustee was not justified in acting as he
did. He did not comply with the provisions of
this section. On both grounds, therefore, this
interdict should be granted. I concur in the
order given in this case.
Mr. Justice Maasdorp concurred.
[Appellant's Attorneys, Messrs. Fairbridge,
Ardeme k Lawton; Respondent's Attorneys,
Messrs. Tredgold, Mclntyre k Bisset.]
SUPREME COURT.
[Before the Right Hon. 8ir J. H. D» ViLLUm,
P.C., K.O.M.O. (Chief Jnstiee), Mr. JobI&m
BucHAKAH, and Mr. Jnalioe Maaimib».]|
vLsaa V. nJDQO and hijsom
' JMfty 17«lr.
This was an action f6r divorce, on the gronnd
of adultery.
Mr. Buohancn appeared for the plaintiff,
Frederick M. Fiegg.
Frederick Montague FVegg said he wai a
hamessmaker, and lived at Woodstock. He
was married to his wife In London on 20th
May, 1893. There were no ohildren bom of the
marriage. He and his wife came to Cape GiSoiiy
in July of last year, and had lived In the CoJony
ever sinoe. He and his wife lived happily
etiongb together until In DeeemCer last fali wifit
suddenly left him. After inquiiieB he ftfUAd
she was living With a man natned Hoioil. Soon
afterwards he received a note from her 'adding if
she could have her clothes. That letter he did not
reply to, and he tore it up. In the letter hta
wife asked him to address his letter to the Cape
Town Post-offioe, "to be called for." Later ahe
came to the factory where he worked at Wood-
stock. Witness oifered to take her back, but
she refused, saying she loved Huson, and waa
living with him. Afterwards (in January) he,
accompanied by Detective Hill, went to the
house of one Webb, in Woodstock, and fOund
the two living there as man and wife in one
room. Huson is a carpenter employed at Salt
River Works, and eains about US a week. Wit-
ness had now no Idea where his wife was. He
had had no communication with her since that
vUit.
Frederick Webb, Woodstock, depoded tbat
in December last a man and a woman aaked
him for a room in his house. He identified the
woman from the photograph of Mrs. FJegy
produced. They gave their names as Mr. Iknd
Mrs. Huson. The}' occupied one room in hla
house for about three weeks, paying Ts. 6d. a
week. About the middle of January Mr. Flegy,
the plaintiff, informed him that the woman was
his wife, Mrs. Fiegg. She admitted to hlin
that she wanted to get a dirorce from her hna-
band and to marry Huiwn. Witness told her
to find another place to live in. They then lefl
his place. While with him they used his furni-
ture and provided their own boarding.
A decree of divorce was granted with coiCa,
and £10 damages against the co-respondent
The Chief Justice : It has been proved that
adultery has beea committed b^ the coHlefendaiit
{
173
^^eadoKluft^ mo^ 14 is qvtto elear tbAt
««M«feiidi&« most pmy the eoetg. Tkeooly
^iUiy it M t^ aii.ni«iS«^ ^**« ooMkfeiidMii
^tctij|MB<tt ^mnrinj^ i£3 » week, and it i« un-
^ttatbeean pmy IfeeAiry dfttnagw. Bat the
iMtiS to m4 to lie o«4 of poeket, and in order
^pKTCht lAm Vssiii^ money the Court will
MwA £10 •» dasnmseB, tiiUi Bum beii^g given
■ot u coiDpen8&tioi&, but becance we award
vbtt the co-defendmot will be ftble to pay. The
dMveef diTorbe ls-Ki'«nte<l with ooet8,aDd £10
dimaKtt«|{^iMl^ tlfte co-4lefeikkuil.
|PWntir» AttonfteT, C C. Bilberbauer.}
I* 1897
HALL y. GI.ikBKK AKI> OO. J jj^y ,7^
Magistrate^n jurisdiction — Set-off.
H. 9mtd C. & CiK. fM a MugUin^ten
Ommri far £lf0 6m. 9d. trnd wmexed
to th^ gumntoms wrtu an aeeotmt for
JtS5 14n. Of/., which war originally
ff«€ to H. as commUftiou hut which
w^u reduced to the amount claimed
^ g^iV ^^ ^' ^ ^' c^^^i^ f^^
£S3 Sm, M., eoMh reeeivid oh
aecomnt hy H., and by setting -of
£1S 5it, Od.^ being an amount due
iy H. toC. &.Co.
The Resident Magistrate sustained
' 4H exception taken to. his jurisdiction.
H^kl, oil appeal, that the Magis-
trate had jurisdictiofi to try the case
inasmuch as the two atnomifs were
capable of compensation,
Kruger r. Vau Vuureu's Executrix
{6Jmia^ m2) and 'Vhwow r. Wolff
I4 Sheily 18) followed.
Thla wma «o appeal from a decision of the
BesideDt Magistrate, Wynbei^g, in a
Cbeard on the 4tb Marefa, 1897), in which
the present appellant waa plaintiff.
T]be aammona against F. H, Clarke (trading
«B F. B. Clarke Sc Co.) daianed dll9 58. Ud ,
li^fanee of an account as commiesion on adver-
t iw me uti oanTasaed for, aud moneys collected
for defendant in October, 1896, and January,
^9tfl, " as peraeooiuDt hereunto annexed."
The aeoonnt ' showed a total indebtedness of
M» 14«^ but from this the pUtiatiff deducted a
■am cf MS^9», 3d. (cash reoelTed to date), and
^19 6ik (nmoiiiit owing to Clarke k Co.), leafing
file bnlnnce sued for,
At tiie hearing the defendant excepted to the
Bepidefii' Magistrate trying the case on the
ground that plaintiff's claim being for work and
la()Our done above £20, and the credits and set-
off given in the account not being admitted, and
the whole of piaintlff^s claim lieing diitputed by
the defendant, this Coart has no jurisdietion to
adjudicate upon the plaintifl's claim, according
to the ca^es of Jr^^^r T. ChiapphU {B B.D., 131)
and Choreic v. ffor$ley (3 K.D.. 488).
For upholding the exception the fbUoiilAg
were the Assistant Uesident Magistrate's
resBons :
1 he defendant disi>utt s the eorrtctaessof the
whole account ann«xed to the summons and
produced his ledger showing a balance In his
farour of £1 2s. Id. I could find no entry of the
amount £18 5s. in the ledger, nor of the other
Hems shown in the account. The whole of
plaintiff*B claim beiiig difputed he oannot con-
fer jorisdlction on the Resident Magistrate by
giving credit for an amount not admitted by ds-
tendant, aud t>y a side-wind getting the Oomrt tm
adjudicate on a claim exceeding its jurisdiction.
No agreement being arrived at between the
parties as to a set-off. the Court would be com-
pelled to outer into the whol^ account' in order
to arrive at a decision.
The exception is a good one, and must be up-
held with costs.
Against this decision the appeal was now
brought,
Mr. Qraham for the appellant : The Magis-
trate thinks he has no jurisdiction,
liecause there is no admitted set-off. {CJwrtley
V. Ilorsley ; Beer v. Chiappini), But in Theran
V. ^yolff (8.C.B.. LI, 16) it was held that an
amount capable of being set oif, could be set off
f o as to bring tLe daim within the jurisdiction.
In that case, there was an. a mount which was
admittedly due. In JCrvg. r v. Van Vunr&n (5
Juta, 162). tbeChief Justice held that there was
no necessity for any agrctmifit as te setolL
Plaintiff in any event would have to abandon
the £18 es.
The appeal was sustained with costs.
The Chief Justice said : In this case the^ plain-
tiff claimed in the Magistrate's Court the sum
of £19 OS. 9d., an amount which was dearly
within the Magistrate's jurisdiction. In order
to see how he arrived at the amount, the plain-
tiff attached an account to the Bummons^ show-
ing an amount of £60 J 4b , and then he places
on the other side, cash recdved to date end
amount owing to defendant, £46 86. Sd. This
amount of £46 8s. 8d., the plaintiff, says I shall
dednet from the £66 14g., and I now dain the
balance of £19 58. 9tL Now the only questiea
t6 be decided isv whether tbis-amouat whieh the
plaintiff proposes to deduct, is eapatile of befing
set off. that is the result of the deci«)oi| in the
174
of Tkeron y. ]Voiff. If in tbia otM the
plaiiitUf, insiebd of setting off the amoant, eaid
I sbMidon ray eJaitn, the liagiatimte would have
had jorieidiction: and practically the plaintiff
did abandon the amount, for even if it were
found that tlio amount wae owing to him^ he
could not at any other time have &uooeedad in
enforciDs; the claim to it. I am sure that if the
M mtistrate had eeen, or had his atte&tioB e^ed
to the recent oaee of Theron ▼, Wolft hit judg-
ment would have been different. Bat hia atten-
tion was apparently called only to the Kaatem
District Court eases, whieh have been
aoroevhat modified by the decision in
this OouJt. In those Eastern District
Court ca»e8 it- was held that a set-off must be
admitted, but the Supreme Court ban held
that there is no necessity for the set off being
admitted, so long as the claim is capable of
being act off. The appeal must therefore be
allowed with costs.
[Appellant*8 Attorney, D. Tennant, jun.]
MiBouaasN V. bkibbb.
I 1897.
I May 17th.
Costs — Mftgi^trate — Judicial diflfcretion.
Where a Magistratey in giving judg-
ment for aft amount tendertd, (the
tender not having been pleaded)
ordtrtd the plaintiff to pay the cont-y
the Court, on apjieul, declined to
interfere with the judgment.
This was an appeal from the deeiaion of the
Assistant Besident Magistrate, Cape Town, in a
ease in which the appellant was plaintiff.
The summons ^ claimed Al 4s. in respect of
work and labour. Plaintiff had made a boat
at Ids. a day for defendant* for which he was
paid. After payment he put in a further claim
for 24s., for two days* assistance (prior to the
building of the boat), the worlc consisting in
helping defendant to choose a plank and have it
sawn. Defendant tendered 18s., '* rather than
waste time by gcdng into Court."
The Resident Magistrate gave judgment for
ias.,bnt ordered plaintiff to pay all costs; hia
reasons beings
1 was of opinion that as an uneonditioiial
tender of ISs. appeared to have beto made be-
fore summons, plaintiff was entitled to recovw
Ihat sum, but that as he had refoskd to accept
thatsom, defendant could not be held liable fOr
Against this appeal waa now made on the
gionnd that the Resident Magistrate had not
ezereised a judicial discretioii in mikliig plain-
tiff pay all coats, as the tender waa not pl w i d od
and waa not relied on at the trial, the dofendnat
having pleaded the general iaaoe.
Mr* Qraham appeared for the appellant : The
principle involved ia one of extpomo
lasportanoe. Qaeation ia, what ia the effeet of
a tender duly made imt not pleaded ? Plaintiff
ahoQld have got hia ceata. Mmtert v. FtMer
(fi. 1876, p. 23,
The appeal waa diamiased.
The Chief Juatice aaid : Aa to the merits o|
the case, I see no reason to find fault with ilio
deeiaion of th$i Magistrate in awarding only ISa.
to the plaintiff. It waa merely a queation of
credibility, and the Magistrate bidieTed the
evidence th^t payment waa to be made only for
building the boat, and not for going about £or
two days in search of timber for building par-
poeea. The plaintiff objeeta to pay the ooeto of
general one, and the tender waa not plendod; I
am not prepared to lay down the rule that oTon
where the defence ia a general one aach na
objection can be maintained. The caae of
Mottert y. Fuller is not analcgoua, for there the
amount awarded waa larger than tJhat tondei'ed.
The Magiatrate ia alwi^a allowed a jndlcinl
discretion on the question of ooeta. Under nil
the circumstances the Court cannot say thnt
there has been any improper exercise of the
Magistrate's judicial discretion. The nppenl
must be dismissed.
Mr. Justice Buchanan said : On the fnota ne
found by the Magistrate, and which flndios is
supported by ^be evidence, the judgment in thia
case might have been entirely for the defendnnt^
The Magistrate has given the appellant n&ora
than be was entitled to, but there has been no
cross appeal. That is no ground, however, for
giving the appellant, who has already got naom
than might have been given him, a still further
judgment I concur that this appeal most ho
dismissed.
Mr. Justice Maasdorp concurred.
[Appellant's Attorney, D. Tennant» jun.]
BOaa v. NUBZSB.
f 1897.
iMay 17th.
DiviMonal Council — Leasee — Toll —
Exemption from toU— Illegal con-
dition — Reasonable exemption.
The C0pe Dimtianal Cowttil
entered into a cofttraet for the htme
of a certain toll to the plaintiff, on
coudiiion^ among othem, that the
residents icithin the limits (*f Maitf
176
^o^ Village JftitiagemefU Board
ikould he ejcempt from the payn^ent
o/tott«.
Dwiiif ihe cmrrencp of the lease
tkc liRiifo cf a neighbourinff fHimiei'
polity irere extendeti «o as to emhrace
a jwHioM of the area formerly
mdudul within the limtts of the
Afttidcmil Village ManagenictU
Board,
Held, m om etetiou for Ml moneys
against the defendant^ who teas a
resident vMhin such portion^ that
ft' remained exempt uotirithstafultNg
the ertension of the netghhourinq
Mmeieipaliiy.
Held Ifiiiber, thiU the cofidition
ejempiing residents within the prox-
imity of the toll iras, under the
cimimstaficeSj reasfjnahle and was
not illegal or contrary to tfte pro-
risimu of the Divisional Councils
Ad, 18S9.
This was an appeal frDm a deolnon of the
Beaideiii M a^fstrato, Cape Toim, in a case in
wkieh the respondent Boed the appellant for
17iL 4d^ ton monejrt.
The plaintiff in the Oomt tielovr is the lenee
ndcr the Cape Dlriirional Coonoil of the tolls
9qiper and lower roads) on the qxilitary lines,
swl at tha third milestone, Maitland, his leiise
nailing from 1st Jannaiy to 81et December,
law-
ike l aaae was signed on the .91th December,
IIM^ aad oontained a clause eSempting the'
▼eUdee and animals belonging to ** residents
vttbin the Hmits of the MftiUand Village
KaMi^BDient Board " from payment of tolls at
tiM tiiird mUestone.
▲ danse proriding for saoh,azemptlon has
fnasrfed in the toll leases for abme years past
bf the Cape DiTislooal Ooftncil, M consequence
ef a vBBolation of the fionse of AssemblT* stating
ttntiatheoplaion of the House the inbabi-
tsBlsefllaHland were either entitled to such
nfief under the special clroumstances of the
esse er that the toll should be remoTed outside
ths Hmits of the Hnnidpalify. This resolution
•em communicated to the Dirisional Oonncflby
shlterfrom the Assistant Commissioner of
CiewB Lands.
Is Jannecj, 1897, a proclamation was issued
thui^ the manioipal limits ot Woodstock,
nasi iiig therein a portion of the Maitiand
Village Management Board area. ;.n con-
sequence of this the toll at the third milestone
is within the Woodstock limits, and m> also are
the houses of the defendant and many others.
The plaintiff claimed that as defendant and the
others are no longer within the limits of the
Haitland Tillage area, they are now not entitled
to the exemption, but are liable to pay tolls,
even though at the date on whiclr the contract
was signed the defendant was exemi^
The defendant pleaded that he had gone
through the toll without naying on the date
alleged, but that he was exempt in virtue of the
tscts above set forth, and that his exemption
was not destroyed by the mere alteration of the
municipal boundaries ; further, that as a title
to a fee is in question, it is beyond the Resident
Magistrate's jurisdiction.
The Besid^t Magistrate, holding that he had
jurisdiction, gave judgment for the -amount
claimed with costs, on the ground that as
defendant no longer lives within the Maitland
limits he U not exempt under the clause of the
lease.
Prom this decision the defendant now ap-
pealed.
Mr. Graham for the appellant : The plaintilf
went into court on his lease from the Divi*
sional Council, and under this lease certain
parties were exempt from toll and hid been
exempt for many yesrs ; moreover he had full
knowledge that these exemptions existed.
Woodstock Municipality was extended after the
lease had been entered into. In the contract
a stipulation is entered into on behalf of the
defendant and the plaintiff must abide by this
stipulation.
Mr. Scbreiner, Q.C., for the respondent: An
illegal attempt was made to give exemption to
s certain ares. If an Act of Parlisment had
been obtained giving exiemption, that exemp-
tion would be given to locality only and not to
individuals, end would vary with the locality.
Maxwell on Statutes (p. 411). The appellant's
case cannot be stronger than If an Act had
been passed.
De Villiers, C.J. : Exemption is given to
persons living in the village of Maitland.
Defendant stili lives In the village of Maitland.
Mr. Scbreiner : Village legally means aren
within government of Village Management
Board. Act 40 of 1889, section 167, impliedly
debars the Divisional Council from exempting,
from tolls, other persons than those mentioned
there. The law was the same in 1885, appellant
cannot set up an illegal exemption.
De VUliers, C.J. : The lessee keeps everything
he takes as toll ; so how can he take .toll from a
I person whom he has promised to protect ?
178
and lingB. He admitted having written the
letter produced to Miss Winslow. The letter
asked her to come to his shop that afternoon
between five and six o'clock. He wrote the
letter because he intended to close his shop early
that day, and he was afraid she might be
coming for meat when it was too late. The
letter was never sent, and he believed his wife
got hold of it. He never g^ve Miss Winslow
Christmas cards or rings. He did not know
anything about the account from Toll k Couitis.
The account came to his house, and his wife
got it. Why it was sent to him he did not
know. Miss Winslow might be able to explain.
He could not. On December 17 he did not go
home in a violent temper, andhedid not go into his
wife's bedroom and strike her. It was she who
assaulted him. He did not take a gun home to
threaten his wife with. He always had one in
the house. He might have warned his wife not
to touch it. He may have told his wife she was
not fit for a Kafir to marry ; a man in anger saya
such things. When he struck her it was in self-
defence. He was not given to drink, and was
not in the habit of going to bars to drink.
Plaintiff admitted having written the follow-
ing letters to his wife :
Claremont, January 20.
Dearest Minnie,— I am writing to you these
few lines with teats in my eyes. I cannot forget
to think about you. I feel quite lost and gone.
I don't know what will become of myself. I am
coming to town to-morrow Thursday afternoon
by 4 o'clock train to pay some accounts which
must be paid. My Dear, will you kindly come
to town and meet me at the Standard Bank as
I want to see you very very particularly. I will
meet you between five and six oclock please don't
disappoint, come for certain, as I have got lots
to speak to you, please don't tell anybody that
you are coming to meet me : if your Matye
ask where you are going to tell her
you are going to Bappie. Dearest Love
don't disappoint, as I am longing very
much to speak to you ; do come to town. My
heart is too sore to write any more ; don't do
any thingnot befoieyou see me. Now, my Dear,
I must end with a broken heart and eyes full
of tears, with best best Love to your Dear Self,
and don't forget me. — I remain your Loving
husband for ever and ever
Lonely Mike V.N.
The second letter was as follows :
Claremont, January 22nd.
D. arrsf ^linnie
Having recfive«l your kind litter ytfterilay
afternoon I was tliunderrtruck wlun 1 nad I
yi.ur letter to receive tuch news from you.
Dear Minnie, Qod Almighty knows that I
have no where since you left that night.
I came out early about five oclock
and went to Porter Hodgson, then I came home
and bad something to eat, about 7 oclock I wt nt
to Mrs. Meysll to enquire about what you told
me, she denied having haid anything. Dear
Minnie I spoke to an attorney yesterday ; hetays
we can seperate without going to Court as the
Court will take up all little money we have. Dear,
I feel miserable and knocked up to think about
these things, I will send half of your goods to-
morrow and the other half on Monday as
Johnnie cant take all at once ; do please write to
me what day and where 1 must meet you, eaj
next Thursday afternoon at altout 4 o'clock, as
I must see you before we sell the goods. Dear
Minnie, the figs are getting very nicely ripe now
and big ones too ; will send you some next week,
I conclude with best bent Love to My Dear
Miunie. — I Remain, Your Ever Your Husband
(Mike)
Re-examined : With regard to the admifsion
of adultery in the presence of Heydenrych, he
was so worried with his wife and her chargea
that he might have said, *'All right. l)elieve
what you say, and be done with it." His wife
made him sick with her charges. On birthday
occasions he had got drunk, but he was not
given to drink.
Malvena Winslow said she was unmarried,
and lived with her coupin, Mrs. Stroud, at Clare-
mont. She was engaged to be married lo a
young man named Conlin, and the marriage
was fixed for 28th July. She knew plaintiff,
by seeing him in ids Rhop, where she went at
times to buy meat. The e had been no familia-
rity between their, he had given her no preaenta,
and she had not committed adultery with him.
The explanation of the acount for rings haviuf^
been sent to Niekerk was that she was in Cape
Town and bought rings, but was 16s. short.
Toll k Courtis asked her for the name of some
business man at Claremont, and she gave the
name of Niekerk
Cross-examined by Mr. Buchanan : Mrs.
Niekerk called on her about the charges made
against witness. That was shortly before she
left her husband. It wa» not true that she and
Niekerk had been Feen walkintr aliout the
streets of Claremont. One evening she met
him at the station, and he offered to see her
home, but she declined. It was false that she
(Oiiniilttd .idiillcy wilb Ni-kcr'v in T^rori Ler.
Jniiii'iiy niul February, ^hv c-n-o cnlled nt
NieUt rk*H shop and found Mr>. Niekerk there.
It wiis not true that she '* wns confused," and
179
then said she would come back. She went
back that day to NickerkX takiog a lady friend
with her.
Aodries van NieKerk, brother of the plaiatiS,
ftid that he had been called by Mrs. Niekerk
ifter she had been assaulted. He told his
brother that he ought to be ashamed of himself,
for striking his wife.
Frederick Blaokeabertf, Peter Johannes
Brink, and Henry Greyer gave evidence that
when ▼isi ting the house Niskerk and his wife
appeared to l»e happ} enough together.
For the defence, Wilhelmina Niekerk, the
dffendant, gave evidence as to the marriage.
F* r a short time her husband behaved all right,
but it was not long before he began to abnse her.
He was a very disagreeable man, and was
tlway^ grnmbling. He once threw her on the
floor, and on the bed. and tried to choke her.
She had left her husband twice before, and
went back when he promised to reform and to
treat her better. He frequently swore at her,
Qiing indecent, disgU'^ting language to her. and
ilways before the servants. He told her she
was not fit to marry a Kafir, and he had
threatened several times to take her life.
On one occasion he brought home a gun, saying
that he harl bought it for the special
porpose of Ehooting her. She had lent
him £57 of her own and her aunt*s money. On
January i she received the account from Toll &
Courtis for jewellery, which articles were not
for her. Witntrss spoke to her husband about
the account. At first he denied, and then he
admitted having committed adultery with Miss
Wioslow. There was no one present when he
made the admission, and he told her that as
there was no witness present she could not
prove anything. She separated from him that
night, goii g to another room. Later her
husband said to her and Mr. Heydenrych that
he had committed adultery with Miss Winslow
it that time her husband was ill and in bed.
On I7th January he struck her in the bedroom
in the hall, and in the dining-room. It was
not true that she kicked him. as her husband
alletred. On that occasion her husband said he
would not rest until he had killed her. He
farther said that she must leave his house as he
wti to bring another woman into the house.
Shef^nt or her husband's brother, and for Dr.
Beck. Dr, Beck attended to her injuries. It
was not true that he kept a gun. When he
went out shooting he always borrowed a gun,
and that night he said he had brought the gun
home expressly to shoot her, to blow her brains
ovt he said. Her husband kept very late
kmt.
Blizabeth Muller, who was a servant with the
Niekerks, said she had often heard her master
swear at her mistress. She heard her master say
one time that he had brought a gun home with
which he was going to blow her head to pieces.
On I7th January, she saw Niekerk strike his wi^e.
Witness had seen Niekerk twice with Miss
Winslow in Clareuiont. That was at night, and
on both occasions Niekerk was late in coming
home.
Cornelius Heydenrych, master tailor, Kenil-
worth, deposed that he was in Niekerk*s house
in January. Niekerk, in the presence of his
wife, said he had committed adultery with some
one, the name witness could not remem-
ber. Niekerk said he had been on
the "boose" since the preceding Wednesday.
Mrs. Niekerk paid he had not only done what he
said, but he ill-treated her and gave presents to
the girl Witness did not want to bear more,
and left the house.
Dr. Beck, Clareraont, stated that he was
called to sec Mrs. Niekerk— he thought about
the 18th— and he found her suffering from
bruises about the up er lip and nose. The
blows to have inflictci the injury must have
been pretty severe.
Gabriel Neilson carpenter, Woodstock, de-
posed that he knew the Niekerks, although he
was not intimate with them. On 4th March
this year he wau at Claremont between eight
and nine o'clock in the evening. When he came
down the road to the hotel he saw Niekerk
standing in front of the hotel cuddling a girl.
The two appeared to be very loving at the time.
He had his arm around her neck. It was a
a coloured girl he was with. By-and-tye
Niekerk went into the hotel, and witness, just to
make sure that it was he, followed him, and saw
him in the hotel. When Niekerk came out he
stood with the girl for about another quarter of
an hour, and then she went one way and he
another. Witness had seen Niekerk walking
about Claremont late at night. One night he
saw him in the street close upon eleven o'clock,
and on another occasion he saw him come off
the last train. Witness did not think Niekerk
was sober, he was staggering about the street,
and trying to knock people down. Niekerk and
his friend went to another house in Claremont
that nigbt ; he did not got to his own house.
Cross-examined : Witness knew that Nifkerk
was married, and that was the reason that he
paid so much attention to him. He had not
been engaged and paid by Mrs. Niekerk to
watch her husband.
The Chief Justice : The Court is not satisfied
that there is sufficient proof to justify more than
the granting of a decree of judicial separation.
180
After argument.
The Chief Justice said: The moet serious
charge made in this case is that the plaintiff
committed adultery with Miss Winslow. It is
sufficient to say here that with regard to that
charge there is not sufficient evidence to
prove it. There are circumstances of suspicioB,
and there is the admission made by the plain-
tiff, but all these circumstances are not suffi-
cient to justify the Court in concluding that
there was adulteiy committed on the part of
the plaintiff, and the plaintiff is entitled to the
benefit of the doubt. I am quite satisfied, how -
ever,upon the evidence that the plaintiff is not en-
titled to the relief which he asks for. lie asks
for a decree of restitution of oonj ugal rights. The
treatment which the defendant received from
him has not been what could reasonably be
expected from a husband towards his wife. This
was not a solitary act of cruelty which was
committed on 17th January of this year. On
two previous occasions the plaintiff's conduct
towards his wife was, to say the least of it, most
undutifui and improper. Not only did be on
several occasions assault her, but he also used
lauguage towards her which no hueband ought to
use towards his wife. There was for instance the
telling hid wife that she was not fit for a Kafir.
The defendant swears positively that this ex-
pression was made use of, and the plaintiff is
not prepared to deny that it was used.
Coming to the occasion of J 7th January, I think
it is quite clear that it was the plaintiff wh'i
assaulted the defendant. I don't believe his
story that his wife assaulted him, and that it
was in self-defence that he struck her on the
lips and nose. He may not have used his full
force, perhaps fortunately, but tliat he severely
assaulted her there can be no doubt. Taking
also the fact of plaintiff's admission in the
presence of Heydeurych that he had committed
adultery, I am of opinion that life with the
plaintiff could not be expected on the part of
the defendant. Heydenrych's evidence bears
every trace of being true, and I am convinced
that both he and Mrs. Niekerk are speaking the
truth. Whether the adultery was committed or
not I believe that the plaintiff said he had
committed it. That statement of the plaintiff,
taken in connection with acts of miscouduct
towards his wife, would, ia my opinioD, justify
the Court in granting a decree of iudicial separa-
tion. The judgment will therefore be for the
defendant, and an order that the plaintiff pay
the costs of the suit.
[Plaintiff's Attorney, J. C. Berrange Sc Son;
Defendant's Attorney, D. Tennant, jun.]
SUPR EME COURT
tBefore the Right Hon. Sir J. H. DB ViLUBBS,
P.C.,K.C.M.Q. (Chief Justice), Mr. Justioe
Buchanan, and Mr. Justice Maabdobp.]
I 1897.
DB mabillao v. bbutnb. < May 18th.
I M mh
This was an action to recover the sum of
£500 due upon a certain agreement dated 27th
March, 1895,
The plaintiff's declaration alleged :
1. Plaintiff and defendant both reside at C«pe
Town.
2. During the early part of the year 1895 the
plaintiff performed certain work and rendered
certain services to the defendant at his request
in connection with the inspection, proBpectin^^,
and attempted flotation of the farm Loeries-
fontein, in the district of Calvinia, and the de-
fendant became and was indebted to the
plaintiff in a considerable sum of money in
respect of the said work and services.
3. In satisfaction of the debt so due as afore-
said, the defendant on 27th March, 1895, and at
the request of the plaintiff',agreed and undertook
to sell two shares in a certain syndicate called
the South African Prospecting and Develop*
ment Syndicate, which shares were then in the
defendant's possession, and to pay the prooeeds
in cash to, or plaje it in the Bank of Africa to
the credit of the plaintiff's wife, B. L. de
Marillac, to whom the plaintiff is married out
of community of property, and to whom at the
said date ht: was indebted in an amount exceed-
ing the market price of the said shares.
4. The plaintiit, on behalf of his said wife,
and with her authority, duly accepted the said
undertaking.
5. Tne value of the shares in the said syndi-
cate immediately after the date of the said agree-
ment was a sum of £250 each^ and the defendant
did sell two shares and upwards at that price,
and received the money therefor.
6. It became and was the duty of the defen-
dant either to pay over to the plaintiff's said
wife the sum of itoO , being the value or equiva-
lent of the said two shares, or to deposit the
said sum to her credit in the Bank of Africa
as aforesaid, yet he failed and neglected to
do BO.
7. On the 15th July, 1895, plaintiff's wife
ceded to him for valuable consideration all her,
right, title, and interest in the said sum of itSOO,
due to her by the defendant, and the plaintiff is
now rightly entitled to sue for the same.
181
8. AX\ things have happened, all oonditionB ]
bare been fnlfiUed, and all times elapeed to '
atitle the plaintiff to be paid the paid i&uin of
ISOOt together witli the interest, from the ?Bt
April, 1895, yet the defendant wrongf ally refuses
to psy toy part of the sniu.
Ttie plaintiff claims :
{a) Payment of the sum of £500 with interest
from 1st April, 1895.
{h) A-lternaUve relief aadooets.
The defendant's plea was as follows :
1. Defendant admite the allegations in para-
gnpb 1 of the declaration, but denies all and
Rmdrf the allegations in the other paragraph of
Uw said declaration.
3. He says that if he did make a promise to
edl two shares in the South African Prospecting
tad Development Syndicate, and to pay the
pneeeds in cash to or to the credit of the plain-
tiffs wife (which he denies), the said promise
WIS founded upon no consideration, and is
tbcfefore not enforceable at law. Wherefore he
prays that plaintiff's claim may be dis-
miised with costs. And for a further
plea in case the foregoing shall be considered
insafficient, but not otherwise, he says :
^ He repeats the allegations contained in
paragraph 1 above.
i. If he did make a promise to sell two bhares
m the South African Prospecting and De*
Telopment Syndicate, and to pny the proceeds in
cash to or to the credit of plaintiff V wife (which
be denies), that he has paid the proceeds of the
Mid shares to plaintiff.
Wherefore he again prays that plaintiff's
daim may be dismissed with costs.
The replication was general.
On these pleadings issue was joined.
Mr. Bose-Innes, Q.C. (with him Mr. Close),
for the plaintiff.
Mr. Benjamin (with him Mr. Buchanan) for
the defendant.
The toUowing evidence was led for the
plamtiff:
Eroat Anton Marie de Marillac stated : I am
plaiotiff in this action. I know defendant, and
was introduced to him by Mr. Solomon in 1894.
Defendant had certain concession of mineral
rights over Loeriesfontein; he spoke to me in
glowing terms about them saying there was
tbondance of graphite, nitrates, coal, alum. See, ;
sad I was asked to place the concession and
flotation by capitalists in London on behalf of
the Loeriesfontein Syndicate. I was to receive
ei^t syndicate shares for the notation. After
imaging preliminaries in London I proceeded
to Loeriesfontein, and found the matter had
bee& rery much misrepreeented ; and the con-
ditioosgenejally were unfavourable for flota-
tion. I cancelled my arrangement accordingly
with the syndicate, but made fresh arrange-
ments lo go into the matter as the indications
justjtied further and proper exploitation, though
the surface minerals were grossly misrepre-
sented to me. My first visit was in February,
1896. I went then to considerable expense,
having, eg., to pay Mr. Watermeyer*s
expenses for going with me. On the 18th Febru-
ary I asked for two further shares for my
trouble, in addition to the eight shares for
flotation. On my return I met defendant in
Cape Town, and came to an agreement with him
under whidi he agreed to sell two shares for me
and pay me the proceeds. Defendant had all
the syndicate shares issued to him personally . in
fact, as I ascertained subsequently, he was the
syndicate vendor, promoter, and chairman. I
corresponded with Mr. Solomon as agent for
Mr. Bruyns, and wrote to him on the 12th
March buggesting an arrangement in settlement
of my claims, and made an arrangement with
Mr. Bruyns verbally in terms of that letter. 1
was still not satisfied, and on Hth March, in
confirming that arrangement, I wrote to
Mr. Bruyns expressing a hope that I should
get a further share m the syndicate in view of
the trouble and expense I had gone to in the
matter. I saw him again after this, and asked
for more shares, and he promised two more in
addition to the two extra shares already
promised, as to which I had then received a
great part of the proceeds from realisation. On
the 27th March he put this in writing, and at
my request made the proceeds of the two new
shares payable to my wife, as I was then
indebted to her. This document was duly ceded
to me by my wife on the 15th July. On the
29th March I replied, accepting the offer on
behalf of my wife, I had done work, and was
largely out of packet. That was why the
promise was made. Before the 27th March
defendant had paid me large sums on account
of the proceeds of the two extra
shares first promised. Their sale value
was £^2bO then. In the commencement
of April I went back to Calvioia. stayed there a
good while, and went to considerable expense
again. Including the engineer's fets, &c., the
expenses came to £^O0,the greater portion being
refunded by the persons in London who were
interested in the venture, on my representations
to them. I went to Calvinia five times in
connection with syndicate matters. The only
way of recouping myself is by these shares.
Even then I shall be out of pocket I know
defendant sold some syndicate shares shortly
after the agreement of i^th March. He has told
me he then sold to Kitch, Cunningham, Ran-
182
some, and Sisit for £250 a share ; to Dix and
others he sold half-shares for £126. Nothing
has beeD paid to my wife.
Cross-examined: On my visit in li'ebruary I
found that nitrates, c.g.y did not exist super-
ficially, though I had been told the Burface
nitrates were abundant. They might have been
in the soil, but no one could show me where. I
went all over the farm, being shown round by
the Ba9 cards on the place. I formed my opinions
from the geological formation - and also
went over with a man experienced in coal.
I decided I had been deceived, and immediately
stopped tne flotation which was m hand. The
indications of oo'tl, magnesium, &c , were good ;
but these minerals were not on the surface as
represented. I was not credulous in starting the
flotation before I had actually seen the spot. I
acted on Bruyns*s representation, b lieving him
on Mr. Solomon's assurance to be
trustworthy. According to the original
oontract I was to pay all expenses of the
visit to Loeriesfont^in. When I found I
was deceived I cancelled the whole arrange-
ment and we made fre.*h t^rms. The con-
sideration for the extra shares was that I
spent a good deal of time at Loeriesfontein
and journeys to and from there; and
suffered considerable inconvenience. I went
solely on Bruyns's business in February. The
other trips were after the 27ih March. Besides
the misrepresentations as to the surface rich-
ness, the concession wa» valueless at the time ;
the Government consent was required, but had
not been obtained. I found this out and put
matters right. I have no influence over Bruyns :
he has a good head on his shoulders. He is in
charge of the bookbinding department at the
" Cape Times " and knows very well what he is
about He is not illiterate. I did not
like the influence Solomon and Gubbons had
over him ; but I never tried to set him ngainst
them. The shares were saleable, and in great
demand at and shortly aft«r the date of the pro-
mise to Mrs. M aril lac.
Re-examined : The syndicate wns first called
the Loeriesfontein Syndicate, then it became
the South African Development and Prospect-
ing Syndicate, and i\ en the New Loeriesfontein
Syndicate. I certatn?y acted absolutely bona
fide in regard to the first wtt^mpt at flotation ;
finding I had been deceived I stopped the flota-
tion at once.
Postea (May 19th).
[Before the Hon. Justice Buchanan and Hon.
Justice Maasdorp. |
Thomas Henry White Barry said he was
seoretar}' of the South African Oevelopn:ent
Syndicate in March, l-'US. and he remained
secretary until the Loeriesfontein Syndicate
was formed. On March 28 two half-sharee of
the South African Develo;>ment Company were
sold to William Kitch at £125 each, and on 18th
August one half-share was transterred to Daniel
Thomas Dix, also at £125. Taese were the only
re;^ist«red sales ; there might have been other
sales, but he knew of none.
Jacobus Peter Bruyns. for the defence, said
that about September, 1894, he held a con-
cession of the farm Loeriesfontein. The farm
was populated by Hottentots, and the concession
was got by Mr. Feltham. In 1894 witness
created a syndicate of tcii shares. Two were to
be sold for the development of the property,
witoess retained two. and the six were given to
those who formed the syndicate. Nego-
tiations were opened between witneea
and Marillac, and the negotiations were
set forth in the correspondence already
produced. Marillac was to undertake
the flotation of the company, visit Loeriesfon-
tein and inspect it paying all expenses. For
that he was to receive two shares. On 10th
January the original shares were converted into
forty shares, and Marillac received eight shares.
Marillac left for Loeriesfontein at the end of
January, and witness followed a fortnight later.
Witneps saw Marillac when he arrived at eight
o'clock in the evening, and next morning
Marillac left, saying he had no time to stay.
Witness went over the property. Marillac had
done nothing. Witne!»s returned to town on the
?rd March and M aril la 3 told him then
that he was dissatisfied at having re-
ceived only eight shares, and he asked
witness to give him two more shares.
Witness agreed, and Marillac asked him to put
them in his wife's name. When Marillac first
spoke to him about the two more shares nothing
was said about the wife's name, and it was a
couple of days later that he asked that the
issue be made to his wife. Marillac then asked
witness to sell the shares, and witness put them
into the hands of a broker. A share and a half
were sold at the full value, £250 a share. Wit-
ness handed the money over to Marillac. The
first half was fold, he thought, to Kitch, and
one-half was sold to Maxwell. Maxwell paid
by a cheque. Marillac wrote the a'^reement
referred to (dated 27th March) himself, and
sent it to him on 2.th March. At that time
witness had sold the two half-shares,
and given Marillac the money. The
written agreement was merely an embodiment
of the verbal agreement. Witness sold another
half subsequently to James Smit, and the
amount he gave to Marillac. The remaining
188
Ktlf he could not sell. Altogether from the first
witneueold five and a half shares. Solomon
was oerer vitnesa'ei agent. On the 18th February
Muillac wrote to witnessi, asking him to sell
two shares. These were two of Marillac's own
tight Bhtrc'S. He had a coDversation with
Uuillac at Loerief*fontein, when Marillac
ifikeii him to eell two shares. Later he wrote
KkiDg him to feell three, and still later to sell
four. Marillac explained that he wanted £1.(00
tofight Lippert,andhe could not off-load himself,
atit would spoil the market, behaving cried
the market down. Witness undertook to sell
thetifooutof Marillac s eight bharcs. On 11th
Ml) there was an entry of £500, which repre-
sented Mrs. Marillac\ two shares, witness havig
tiken the uuBold halt-share. At that time
there was to be a settlement between the two.
Ad account was rendered by Marillac on 3rd May,
which account contained several elightei rors, and
it wag amended on Hth May. On the account
dated 3rd Hay, Marillac wrote asking for the two
8h»rea which Lad been promised Mrs.
Marillac It was not true that he had £500 in
hand from shares realised. On the contrary, he
was HJOi out of pocket. He had raistd the £200
by mortgagiag some of hia property. There
had been the rem of the concession, £2f,0 a year,
ud expenses of the bore. uitn. engineer, survey,
amonntinx to over £3 J a month. Tiiere had
l>etn various promises made by Murillac. but
vitoees had got no l>euefit from Marillac. Wife-
Dts< ha<l paid him £•> JO and expenses, amount-
iof inall to £6.'^9 7», 6d., and witness was no
l>«tter, but wor^e, than when he first got the
oonce^ion.
Cros$-eza mined by Mr Innes : Oiiginally
there were ten shares, but they did not belong
to him. Fe thn:;i got the concession, undcided
it to witness, witness sent Feltham for the
coDoeseion. got it^ and witness gave him two
ihare . The other eight belonged to Bolomim,
the secretary, and himself. The di^tributiou
of shaies did not take place until
the forty shares were created. Witness gave
hifiion two shares, but he did not pay and he
did not retain them. Marillac had the scrip
vf his eight shares, and when he (Marillac)
Mketi him to sell, he did not ban ( thc^scrip to
witavw. Witlle^8 agreed to give Marillac. two
than s before (he two for Mrs. Marillac*s shares
were mentioned. He could not lemember
teeing a letter written by Marillac on 12th
Karch. that he (Bruyns) was to sell two shares
ftnd place the money to his (Marillac's) credit
V I'l- Iri'i*. On i^lb M-'V M;i ii'nc wi-.-te to
d irtilntii t*tii <iiii< :i «.'«'p> '»f iIh" 1 ller of 12th
March. \Vilnt•^H, buwevt-r. c uld liot suy that
ilwlHU Marc'i It-tier wa-* teen by him. Wit-
ness gave the cheque for the first half -share
sold, but at liis request witness cashed it and
gave him £*2d. Witnet-s gave Marillac £125
soon after— afier stlling the second half-share.
Before 27th March, Marillac had received
money for his expenses and the proceeds of the
sale of the share and a half. It was after the
shares had been given to Mrs. Marillac,
that Marillac asked witnef-s to Fign
*the letter promising the shares to
Mrs. Marillac. fidarillac wrote the
letter, and witness signed it. It was Marillac
who put the phrase in that the shares were pre-
sented to Mrs. Marillac on account of (he "in-
valuable assistance rendered " by Marillac.
On 3Ist May witness was seen by Mr. ^iolomon,
and he promised to do his best to sell the last
half-share. Witness had sold shares to the
value of :C',H75, that was five and a half shares
at £'if>0 each. Of the forty shnrcs the New
Loeriesfoutcin had got sixteen shares,
Marillac eight, Feltham two. Solomon four, and
witness ten. At the time of the promise he
had twenty-six shares. The New Loeriesfon-
tein took over (he assets, and for that witness
handed over the sixteen shares. Marillac had
forfeited his eight shares in the New Loeries-
fontein, because he failed to float. Marillac
did not claim four shares. He only asked for
the two for Mrs. Marillac, and he only asked
witness to sell four of his eii^ht shares.
Re-examined by Mr. Benjamin : Marillac was
always pressing witness for money. In August*,
before the bill was due, witness paid £16. Wit-
ness had tried to sell the fourth half-share of
Mrs. MarillacV two shares, but had been unable.
The £15 was olf (he bill, and when be was sued
for the £08, with interest £3, the £15 was de-
ducted. The bill wrs given as an arrangement
for settling. Marilinc (-aid he would not press
witness, but the bill was no sooner signed than
he began to press for money, and even had had
him in the Magistrate's Court. With respect to
not giving shares until the syndicate stock was
converted into forty shares, what he meant was
that although others had an interest in the
syndicate no scip wan given out until the con-
version into forty.
Harry Solomon, broker, said he introduced
Marillac to Bruyns. He acted as sgent as much
for the one as the other. Marillac represented
that he bad enormou-^ capital and influence
behind him. Marillac us d to worry him very
much. He corroborated regarding the signing
of the bill, and as to Marillnc promipine n'^t t'*
I r^'.H^ f. r p;iyriii'i»r. ' ii( llu' li II I nd not berii
ivjiumI twentv-foiir hour.-* "*viM n h" wms nskiii^
for money. VVirness Pdl I omp baif-Hharo. \U
Knew some had l>een sold in March, 181/6. He
184
went over Bruyns's books and made out an
account for £113 odd as the final balanoe due.
Borne slight errors were found out. and a bill
was drawn at four months for the amount.
That settled the matter so far as he knew.
Cross examined by Mr. Junes : Bruyns made
witness a present of four shares. He had done
a good deal of business for Bruyns, and had
given him advice on matters all his life..
Marillac wrote him about Bruyns mixing up the
two promises of two shares each, but what he
meant he (witness) did not understand. The
letters of 12th March and 20th May he would
naturally have shown to defendant.
Mr. Innes, Q.C. : The matter In dispute is
whether there was a contract enforceable at
law, and if so, wh' ther it has been v^rformed.
TradeitmeH's Btn^i Society v. Du Preez (J. 5,
p. 269) is applicable. A contract mnde between
A. and B. for the benefit of C if accepted by C.
can be sued on by him. We rely upon the docu-
ment signed by defendant, in which he says
" upon consideration of tne services rendered by
you/' and agrees to give plaintiff two more
shares and place the proceeds in the name of
his wife.
As to the performance, the whole question is
whether the second contract was a mere vari-
ance of the first, or whether there were two
entirely separate contracts. If there was only
one contract, we must admit that it has been
performed: but there were two: that of the
]2th March had been concluded when on the
27th July defendant signed the letter, agreeing
to sell two shares, and place the proceeds in Mrs.
Manllac*s name. We have our claim on the
letter of the 12th March to tiolomon, which the
letter of the 14th March shows Ihat defendant
must have seen. The letter of the 27th March
is inconsistent with there having been one con-
tract only.
Buchanan. J.: What do you ask for now?
The evidence shows that the shares were not
sold as you allege, and there is no claim for
damages.
Mr. Innes : The plea is that the shares w re
sold. They do not plead that they were noc
saleable; if that case is set up by defendant,
the plea should be amended to that effect, and
then we can also amend and pray for damages.
The evidence is that the shares were saleable.
Mr. Benjamin: Under the original contract
plaintiff was to do certain things, and pay his
own expenses. He has had eight shares and
£600. Defendant has obtained nothing. Letter
of ''2th Mnrrh war to Solo»non nn^l bn ' '•olhinir
tc» do wiili tlie case. Ljtt»*r of ISth FelMuny
refers to two of llio eight original shares. 'J he
two shares which defendant in letter of 16th
March agreed to sell, were clearly the same m
those referred to on 18th February. The verbal
contract entered into in March, was put into
writing Iat«r. The shares were promised for
past services, and it has always been held that
past consideration is no consideration. An»aii
on Contracts, p. 94 ; lioscorla v. Thoma* (.S Q.B.,
p. 234.) There was no consefuus ad idem,
Mr. Innes : The plaintiff receded from the
flotation contract, but he then required to be
paid for services rendered : it was really a
qvaniitm m-emit. We are not suing upon a
qftantiim meruit, but if there was a quantttai
meruit and a debt due to plaintiff, and defen-
dant entered into a contract with him to
discharge that debt, then there is a legal consi-
deration for the contract It is sufiicient to
show some consideration, not necessary to prove
its adequacy. Our law goes further than Eng-
lish law with regard to past consideration, for
it allows an action upon a donation. If this
were a pure donation we could succeed by
attaching another count to the declaration.
Van Reenen*8 TrHgtees v. Versfeld (9 J., 161) ;
There is no doubt as to the irrevocability, because
the shares were to be sold immediately. The
prayer for alternative relief would allow of
damages being granted.
Mr. Justice Buchanan, in giving the judg-
ment of the Court, said: The declaration
alleges that in the early part of 1896, the plain-
tiff performed certain work and rendered
certain services to the defendant at his requeat,
in connection with the inspection, prospecting
and attempted flotation of certain farms over
which mineral concessionb had been obtained.
In consideration of these services the defendant
agreed and undertook to sell two out of certain
shares held by him in a certain syndicate, and
to pay over the proceeds. The defendant's plea
is two-fold, first that if such a contract was
entered into, there was no consideration given ;
and secondly, that if he did make such a pro-
mise, he had performed it. These pleas are to
some extent inconsistent with each other, but
no exception v/as taken. The contract ia
evidenced by the letters which passed between
the partjes. The plaintiff actually visited and
inspected the properties, and though he waa
not Efktisfied w!th what he saw he attempted to
carry out the flotation. The defendant
acknowledged that these services were
valuable, and still hopes to benefit by
them. The defence of want of considera-
tion is based on the fact that when
t'.econ'r.ict wns onlerid into Ihc c \vtMt» pti^t
scrviceK. There is force in th« nrKUmcnt Vtnl
past Kcrxices nlon<^ would not afford coosidfra-
tioQ for a contract, but coupled ns they are iti
186
tUi cftie with futare Mrrioes, which have never
bM Mdered, tiiis d«leDoe faUe. It it not a
qiBitioB of soffieiene^ of oonaideration in this
CMi, hst whether any oonaideration at all
eziita. and we think that it doea. As to the
Mood defence, the defendant oertainly did seU
tvoihares and liand the inooeeds to plaintiif,
bat it is dear from the correspondenoe that
tbe two sfaaret were to meet travelling expenses,
ooiti of proapeeting maohinery and other oat-
Isj, and that the two shares claimed in the
Msration were intended to be addiUonaL The
<lMlaratk» statea that the plaintiff had
Mtoallj sold theae two additional sharas. This,
iKwcrer, is disproyed by the evidenoe, and that
SI a fset they mere merged into another ^yndi-
estSi Their eqoiyalent however is still avail-
iUe, and the plaintiff is willing to take this
eqaivalent. Jodgment will therefore be given
te the plaintiff, for the delivery to him of these
two shares or their equivalent within seven
days, failing whieh for the snm of £fiOO, which
vss the price at which other shares were sold
•t the time of the contract. Plaintiff wiU have
Ut costs.
Their Uxrdahipa concurred.
[Pla]ntiff*a Attorneys, Messrs. Fairbridge,
Afdeme k Lawton; Beapondent's Attorneys,
M«w^ Yin Zyl fc Bnissinnfi.]
SUPREME COURT.
[Before the Bight Hon. Sir Hsnbtdb Yil-
una, K.O.M.G. (Chief Justice), Hon. Mr.
Justice Buohamah, and Hon. Mr. Justice
Maiedobp.]
ADMUBIOH.
1 1897.
/Hay 20th.
Albertus Johannes Marais was admitted an
Bttomey and notary, on the application of Mr.
KeQregor.
PROVISIONAL ROLL.
COLLINS y. OLAMXM,
la this action Mr. Olose asked that the case
ilsad over till the end of term, as there was a
pnapect of thepartiea coming to a settlement.
The ease was postponed aooordingly.
b2
ILLIQUID BOLL.
soxrra AVBicAV absoodltion y. kinq.
Mr. Schreiner, Q.C., asked for judgment,
under Rule 829 (d), for the costs in the action,
the amount daimed in the summons on
acknowledgment of debt having been paid.
The application was granted.
ALLIMZXNBKT y. PIOK.
Mr. Schreiner, Q.C., asked for judgment under
Rule 319 for the sum of 497 6s. Id. in terms of
the prayer on the declaration.
Application granted.
BBHABILITATION.
Mr. Benjamin applied for the rehabilitation
of Peter Willem Bester.
Granted.
NoyricBBB y. NoymiBBB.
Mr. Jones applied to make absolute the
rule nisi admitting applicant to sue in
forma pauperis in an action against her hus-
band for divorce by reason of his alleged
adultery.
The application was granted ; and Mr. Jones
was appointed counsel, Mr. Mostert to act as
attorney.
FSTinON ov V. w.
Mr. Oardiner made application for autiiority
to the Registrar of Deeds to issue to
petitioner a certified copy of certain mortgage
bond for the sum of iftl,dOQ, passed in his favour
by Margaret van der Hoven, hypothecating a
piece of quitrent land called Bellevue, near
Willowmore, the original bond being lost or
mislaid.
The Oourt ordered that a rule nisi be published
in the nearest newspaper, the ** Beaufort
Oourier,** returnable on July 12.
IN TBI BflfTATB OV W. BBATHBBBHAW.
Mr. Oraham applied to make absolute
the rule nisi for payment to the General
Bstate and Orphan Ohamber of the
balance arising from the sale in execution of
portion of two lots of ground situated at
Wellington, the said Chamber being creditors
for moTp than the amount available, but the
mortgage 'bond on the said ground securing the
same being lest or mislaid.
Application granted.
186
ALLBHZBNIKT Y. BAK«rSWa,*B BXlOUTOBfl.
Mr. McGregor applied to make abio-
lute the rule nisi for an interdict
restraining the reepondent from transferring
to the purchaser thereof erf No. 88 at Hermanns-
petrosfontein, pending an action brought by
applicant for transfer of the erf in question,
which he alleges he purchased from the said
Gaertner during his lifetime.
Mr. Searle, Q.O., appeared on behalf of Mr.
Kleyn, one of tiie respondents, to consent.
The rule was made absolute, costs to be costs
in the cause.
rvrmoK ov waliam bosb.
Mr. Benjamin made application for leave to
•ue by edictal citation in an action against
Henry Oohen, formerly of Kimberley, but now
of London, for the recoreiy of an amount due
upon twenty-six promissory notes.
Leave was granted ; personal service to be
eifected, returnable on 1st August.
FKnnOM OF ALBBBT BILL.
Mr. Buchanan applied to make absolute
the rule nisi issued under the Titles
fiegistration and Derelict Lands Act for regis-
tration in the name of petitioner of certain
farm known as South Park, in the district ot
Matatiele, the same having been purchased by
him in 1884 from Floris Visagie, whose where-
abouts is unknown, and since sold to Henry
Watkinson, who lost or mislaid the papers
necessary to procure transfer.
The application was granted.
SUKABBB'B BXEOUTOBB Y. f 1897.
WHrnfiHBAD. (May 20th.
Mr. Bearle, Q.C., applied for an order
requiring the respondent to restore certain
fence, being the boundary between the lots of
ground Nos. 7 and 8, the property of the parties,
situated on the Palmboom-road, at Newlands,
and interdicting him from interfering with the
strip of ground in dispute pending an action for
a declaration of rights.
Mr. Searle, Q.C. : The applicant has been in
possession for nearly twenty years, the fence
has been erected for all this time, and no dis-
turbance has taken place. The onus of bring-
ing an action is on the respondent
Mr. Graham : Respondent's fence has been
put up already; it must have taken considerable
time, and no opposition was offered by appli-
cant. Respondent cannot restore the live fence
now, and it would be hard on him to order him
to remove the fence which he has ertc^id. He
gave applicant notice that he was going to have
the property surveyed.
The Ohief Justice : Time ought to be givesi to
respondent to remove his fence or establish his
right by action. Within three months from
this date the respondent will either remove the
fenee and restore the one removed by him or
bring an action for a declaration of his rights.
[Applicant's Attorneys, Messrs. Beid k
Nephew ; Respondent's Attorney, 0. C. Silber-
bauer.]
Oin>TBHOOBN TOWN OOUNOIL.
Mr. Searle, Q.O., applied to make
absolute the rule nisi for authority
to the Registrar of Deeds to pass transfer of the
one-eighth share of the remainder of the fmrma
Hartebeeste Rivier and Grobbelaars Bivier, in
the district of Oudtshoom, to the petitioners
upon condition that they shall be bound to trans-
fer defined portions thereof previously sold to
the original buyers or persons cetablishing their
claims thereto.
The application was granted.
tM BBTATB OF THB LATE MACKB80 KULU.
Mr. Close applied to make absolute the
rule nisi for authority to the Registrar
of Dee is to psMi transfer to petitioner
of certain land in the Tambookie Location,
diet ict of Glen Grey, petitioner being only son
of the said late Mackeso Kulu by his first wife,
and as such entitled to the said land by virtue
of native custom.
The application was granted.
BKTTBLHBIH Y. WILLIAMS.
f 1897.
( May 20th.
Evidence Commission de bene esse —
Plaintiff— Further security — Pere-
grinus.
B., an inhabitant of the Transvaal ^
was arrested in Cape Toijon on an
application Jor extradition.
B. thereupon sued the d^endant^ as
the Magistrate who issued the arrest
warrant f for damages fm illegal
arrest.
Before the plea had been filed the
plaintiff went to England and
application was made for leave
to have his evidence taken oti com-
mission.
The Court granted the order subject
to the plaintiff furnishing security
additional to that which he had pro-
ifided as a peregrittus.
r
187
This was sn appikMitioo upon noiioe of motion
WthsMpondont^Mr. G.B. WUliams. A.B.M.,
Gaps Town« to show oause why a oonmiwion
i9 Imm §8ie aball not ianw to take the eTidenee
IB London of the applicant and such other of
the witneeaoi aa maj be there refnudiog the
BMtten in iasne between the parties.
For the applicant an affidavit by Mr. J. B.
Kajeer was filed setting forth :
I am an attorney of this Hon. Court, and as
moh entmsted by the attorneys on reoord for the
tpplieant with the management of the snit.
Immediately on pleadings being eloped a
letter was written on the 10th May, 1897, to
t«|)ondent's attorneys snggesting that if an
smmgement oonld not be oome to as to the
soionnt of the damages for which jndgment
ikoM be entered for the applicant in the event
of the Court finding the law to be in his favour
a eommission should iMoe to take the evidence
ef the appliennt in London. This request was
sot acceded to.
When the applicant left Cape Town for
Baiope he was under the imprevion that the
points upon which be desired the judgment of
the Court could be settled by eiception
taken to the applioant's declaration,
and he had made arrangements to
itsy away from South Africa for some con-
liderable period, which it would be extremely
iaoonvenient for him to alter.
The only issue requiring oral testimony is the
aaount of damage the applicant has suffered
hf reason of his being arrested, and upon this
point it is submitted that his evidence could
oonvenientty be taken upon commission.
Mr. Benjamin stated that applicant and
aaotber were arrested in Cape Town during the
Titasvaal trouble upon a formal application for
their extradition. While in prison they agreed
toappear at Pretoria to take their trial and
bsU wss accepted. They appeared at Pretoria
aid stood their trial and were convicted. Now
Mr. Bettelheim sued Mr. Williams for tf ,000
u damages, he contending that his arrest was
UloRaL
Mr. Behreiner, Q.O. (with him Mr. SheU),
Mod that Mr. Williams had acted in
Ui official capacity, and the Govern*
moat was behind him in this matter. He
opposed the ap] lication, but asked that in the
ovont of the commission being appointed
farther security should be given, as the original
■Boority given by Mr. Bettelheim, as a foreigner,
vu given when such proceedings as those
iiksd for were not contemplated.
Mr. Benjamin : Aimore v. Chaddooh (6 Bheil,
M) is a preeedMit for the evidence of defendant
being taken oncomniiasftOB. There is no reported
case as to plaintiff's evidence. Bule of Court
835. Bngllsh practice is almost identioal.
Annual Practice, 1889. Cock v. Alooch (21
Q.B.D.. p. 178).
Chief Justice : Real question is whether the
Court can get at the truth by evidence taken on
commission.
Mr. Bchreiner: This will be going further
than the Court has ever gone. The only issue
is one of damages ; there is no specific allega-
tion of damages, and defendant is in the dark
as to what instructions to give for cross-
examination. The applicant can bring his
action after his return: he does not allege
urgency. There is no reason given for depar-
ture from the general rule. In Atmore v.
Chaddoeh the Court drew a clear distinction
between the case of a plaintiff and defendant.
The Chief Justice said : The main issue to be
tried in this case, will be whether the crime of
high treason is included in the crimes mentioned
in the first schedule of Act 22 of 1882. If that is
decided in favour of the plaintiff then the ques-
tioQ of damages will arise. The plaintiff asks
for leave now to give his evidence as to damages
before a commission. The Court has always
held that the question of damages is one of
evidence. It is not a question which is weighed
in a very nice manner. I am not sure that the
Court could not give damages in this case with-
out hearing Mr. Bettelheim *s evidence, if he
succeeded on the legal question. His evidence
is not of so much importance, as all the facts
are known to the Government. I think the
Court should not insist upon the plaintiff's pre-
sence in Cape Colony for the purpose of giving
evidence as to damages. It is a UAx suggestion,
however, that the amount of security shou id be in-
creased. The plaintiff will therefore be examined
before a commissioner in London; the Court
will appoint Mr. Mackaroess as the commis-
sioner ; the costs of the apolication and of the
commission will be costs in the cause, and the
Court will further order the security given by
the plaintiff to be increased by a further £60.
[Applicant's Attorneys, Messrs. Van Zyl k
Bui8sinn6; Respondent's Attorneys, Messrs.
Reid & Nephew.]
GILUET y. COLONIAL QOTBOIIISHT
•I
1897.
May 20th.
. 21st
Railway — ^Expropriation — Begistration
of title— Quitrent land— Water-
Interdict.
The registered owner of perpetual
quitretU land, who bought it withoiU
188
noUce that the Railway Department
claimed the right to use the water
rising in a certain tcelly in regard to
which there i$ no indication on the
land itself or other proof that it had
been expropriated for railway pur-
poses^ except the bare fact that it is
just within a distance of thirty feet
from one side of the line^ is entitled
to an interdict restraining the De-
partment from taking the water from
the well.
IhiB WM an aotion institated by Nioolas
Joseph Qillet agaioBt the CommiBaioner of
Crown Land, and as suoh repreeenting the
Colonial Government, for an interdict and for
«60U damages.
The declaration alleged that the plaintiif is
the regiatered owner of the quitrent farm
Kroidfontein, in the distriot of Prince Albert,
acroes which farm a line of railways has been
constructed, and is maintained and worked by
the Colonial OoTemment under the provisions
of Act 19 of 1874.
For the purpose of constructing the said
railway line, the Colonial Uoyemment entered
upon the said farm under the powers conferred
upon it by the Act aforesaid and duly laid the
lines of rails across the farm, but it did not at
or before the date of construction expropriate
any part of the said farm.
In or about September, 1890, an agreement
was entered into between the Colonial Govern-
ment of the one part, and the Colonial Coal
Syndicate, the then owners of the farm, in terms
of which the said syndicate agreed for valuable
consideration to allow the Government in
perpetuity to take and use for the purposes of
the railways, or for such other purposes as the
same might be required, all water obtainable on
the said farm Kruidfontein, up to the amount of
16,000 gallons per diem, but no more. The said
agreement was duly registered against the title
deeds of the said farm.
The Colonial QoTemment has ever since the
date of the said agreement taken from a certain
spring upon the said farm a quantity of water
for the use of the engines on the said line and
otherwise, but at divers times between the SOth
day of April, 189ft, and the commencement of
this action, the defendant^ as repreeenting the
Colonial Government, has by himself or his
agents wrongfully and unlawfully, and in spite
of the remonstrances of the plaintiff, taken
from the said spring a far larger quantity of
water than 16,000 gallons per diem, and tlia
defendant wrongfully asserts that he has a
right to take such excess quantity.
fiy reason of the wrongful and unlawful
action of the def^idant as aforesaid, the plain-
tiff has lost the use of water to which he was
entitled, and has suffered damage to the extent
of £600.
The plaintiff claimed :
(a) An order iuterdicting the defendant in his
said capacity from taking more water from hia
said farm Kruidfontein on any one day than the
quantity of i6,iXX) gallons.
{}) £60Udamages and costs.
The defendant specially pleaded that tlie
Colonial GoYemment^ by virtue of the powera
conferred upon it by Act 9 of 1868, and 19 of
1874, in or about the year 1878, duly expropriated
for railway purposes a portion of t. e frntm Klein
Kruidfontein, to wit, 8U feet on both sides of tbe
rails as now laid across the said farm.
That as the purchase price of the land ex-
propriated as afoiesaid, and of all water exist-
ing within the said expropriated area tbe
Colonial Government, on or about the 18th
July, 1881, duly paid to one Frederick Alberta,
at that time the duly registered owner of the
said farm, the sum of iiti4u.
He admitted the execution of the agreement
referred to in the declaration.
As to the spring, he specially said that it was
situated within the expropriated area, that it
Ik as the property of the Colonial (Government,
and that it was in existence at the time the
land Has expropriated ; and that the value of
the water obtainable from the said spring was
taken into consideration when the purohaee
price of the land expropriated mas agreed upon
between the Colonial Government and Alberta
at the sum of i&14 .*.
Ihe defendant further said that all water
required for the use of the engines at thia psurt
of the line is drawn from the said spring, and
t'^at no water has been taken from the plain-
tiff's farm by the Uailway Department sinoe
the date of the agreement.
Ue denied that the plaintiff had sustained any
damagCi and prayed that his claim might be
dismissed with co^ts.
The replication was general, and issoe was
joined on these pleadings.
Mr. Innee, Q.C., and Mr. Maskew appeared for
the plaintiff.
Mr. Shell (with him Mr. Bisset) for the Got-
evnmenti
Nicolas Joseph Gillet, the plaintiff, deposed
that he first went to Kruidfontein in 1886. There
was then no station there. Previous to his
going there he knew of no anrangenMnt beti
189
Alberts and tbe Oo^ennnent The farm
MoDged to » €o«l eyndicate. There was a well
OBttnfanii, wbldi, however, was diy. The well
nstboai 15 feet loos. 12 feet wide, and about
U feci deep. He set « bore-bole in the well, and
•fter he bad gone 331 feet deep he struck water.
The Tesult of tbe boring was that a small well
vhidi witneaa had msMle and tbe well referred to
w«r« fined with water. Tbe bore-hole yielded
9MkO gaUona of water every 24 hours. In
IM a eontraci was entered into between wit-
■esi, on behalf of the ooal syndioate, and Mr.
BUiott, Manager of Railways. Witness pur-
chased tbe farm from the ayndjoate in October,
18Wl He expected to nee tbe surplus, orer
ii^OU) gaUaoB, for himeelf, and a large number
of oiange-trem be brought from Italy bad died
thioagh want of water. If the well overflows
the water goes into tbe dam. If only 16,000
gailona a day were taken from the well, tbe well
woold overflow. Owing to tbe position of tbe
bofe-hole, if only the 16.00J gallons were taken
per day* the overflow was direct from tbe bore-
tole. From tbe centre of tbe well to the centre
o£ tbe line was 28 feet 8 inches, so that tbe well
w«0 not within the expropriated area of 80 feet.
C row ex amined by Mr. Sbeil : His case was
tbskt the itovemment intercepted tbe water that
from his bore-bole, and that the Govern-
Lt t€M>k more water than they were entitled
The water came from tbe bore-bole be had
He bought the farm on dOth Beptember,
189i*» and entered on poeseasion in the following
Lih. Tbe water on Kruidfontein was miner-
with a good deal of sulphur, and be
it was tbe best water on the line for
He was an old railway contractor and
under the impression that the department
ntwaya expropriated 60 feet for railway pur-
By tiie Chief Justice : By digging a furrow be
coakL take all tbe water from the bore-bole. He
waa afraid that be could not allow only the
16^' 00 gallons to go into tbe well. The arrange*
meat was that tbe Qovemment paid £100 a year
for the 16,v 00 gallons per day, and plaintiff
wished for tbe overflow water.
Logan, Chief Draughtsman to tbe
-in-Chief, Cape Qovemment Bailways,
pradneed a plan showing the expropriation of
the line at Kroidfontein. It was tbe tracing of
plan, and tbe copy was made by
The original was destroyed in a fire that
took i^aoe at tbe railway-station, Cape Town.
Orofla-examined by Mr. Innes : Tbe original
would be made from actual survey.
Arehibald Mitchell Shaw, Besident Engineer
fiom Woroeater to Beaufort West, said be knew
tha apriag at Kmidfontein. He visited that
place on Monday. Tbe well is SO feet 9 inches
from the centre of the line to the outside of the
well. Tbe well from the top of the masonry to
the bottom is 17 feet, and the width of the well
li feet 6 inches.
Crosti-examined by Mr. Innes : Tbe well was
about ten feet l)eyond tbe earth-works of tbe
embankment. There were no beacons to mark
off the 80 feet.
By the Chief Justice: Witness thought that
the water came into the well from the upper
side, not entering from the bore-hole.
[Before Hon. Mr. Justice Buchanan and Hon.
Mr. Justice Maajbdobp. |
Mr. G. Kilgour, civil engineer, said he had
examined the well in question. There is no
Visible connection between tbe well and the
bore-hole. There is a pipe at the surface of the
bore-bole, but witness felt cerlain that tbe well
was not an artesian well, one close down to the
strata from which the water came. He was led
to the belief that the flow of water was from tbe
well to the bore-hole, and not from tbe bore-
hole to tbe well. There were indications on tbe
north side and on higher ground than the well
of the presence of water. The supply of water
in the well came from the ^lieuweveld Moun-
tains to the north.
Cross-examined by Mr. Innes : To constitute
a proper artesian well the pipe must go down
to tbe water-bearing strata. There waa fungus
found in the water which he had found in strata
between tbe surface and the water-bearing
strata. He should say that tbe sinking of the
bore-hole did not affect the water in tbe well
further than drawing it off. He considered that
the openings from the porous strata around the
well were very m «ch greater than that of the
pipe.
By Mr. Justice Buchanan : The result of bis
examination was his conviction that the water
in the well did not enter by the bore-bole.
Frederick Alberts deposed that at one time
he was owner of the farm- Klein Kmidfontein.
When the railway was made he was owner. The
railway people made their railway through bis
farm, and they dug a well. They afterwards
sunk a well close to the line on the land they
had exproptiated. Witness saw the well, saw
water in it, and saw the railway people taking
water from it, not for tbe engines
but for the cottage. Witness afterwards
gave a concession to a coal syndicate
and afterwards sold. The Government
paid him £90 for the land they bad taken, and
£50 for water. After be had been paid be con-
sidered he had no claim to the land taken by
ido
the OovernnMni. When hia sKeep went near
the line the Goyernment warned him that if he
allowed them within the portion purchased by
them they -^^ould not be responsible for them.
He g- 1 £ 00 altogether from his agent, and a
£4 bonus. A year after the expropriation the
farm was sold. Daring the time Mr. Gillet was
prospecting <in his farm the railway people were
taking water from the well.
Gross-ezarained by Mr. Innes: When the
GoTemment people made the well there was
enough water. They took the water out «vith
buckets to drink, but there was no pumping
then. I u summer time the water diminished,
but the well never dried up. When Gillet
made the bore-hole there was a great raprly of
water. He never saw so much water come out
of the earth. He did not think the bore-hole
affected the water in the well the railway people
had male.
Henry van Laun corroboiated as to the Got-
emment paying Alberts £90 for land, and
damage £4^ .
Gross-examined by Mr. Innee : The damages
were for water they had taken.
Thio concluded the evidence.
i\r«^a (May 21st).
Mr. luncB. Q.G. : There is no evidence that the
Government is in possession of the well. They
have shown no right to ir. The Court has never
held in cases of this kind that the dominium has
been transferred to Government. In expropri-
ating land Government is allowed to do one of
two things, vis. : (1) Take possession of land for
railway or other purposes simply as occupiers ;
(2) take transfer altogether. Without the latter
Government has no title. There is no statutory
title: in order to get title there must be a
properly registered transfer in the Deeds Ottice.
The legal position of the Government was
recognised in Landmark v. Van der Walt
(8 Juta, p. 8 0). Distinction waA there drawn
between occupation of land for railway purposes
and dominiftm. See also Bower v. Colonial
OovemmefU (6 Sheil, p. 168). It was there
argued for the plaintiff that he was entitled to
the water on certain land, and the question as to
using the water for railway purposes was dis-
cussed. The Chief Justice remarked : ** What
ought to be done by the Govemmeut when they
expropriate 7 " They ought at least to cutoff the
1 and and have their title registered. No evidence
of notice of expropriation ever having been given
Government had the right to occupy ; they paid
£90 for the land, thinking it wa? freehold.
Chief Justice: The document kept by the
(Government shows 80 feet on each side of the
ine. Did the owner know that he was losing
thlsgronnd?
Mr. Innes : There is no evidence of thai.
Bven if the Court finds that he had notioe of
that it only amounts to notioe of occupation.
Putting earthworks there would not show him
that there was any intention of taking more
land than that on which the line was actually
laid The action of the Government waa
inconsistent with its being owner. It entered
into an agreement to buy the water. It is
therefore estopped. It is not neoeesary to plead
estoppel and it will apply wherever one person
is misled by the action of another.
Chief Justice : How could Gillet plead estoppel
as against the Government 7
Mr. Innes ; He was misled by tiie aotioa of
the Government towards his principal.
Chief Jnstice : 1 be Government did not know
Gillet was going to buy.
Mr. Innes : As to the suggestion that Gillet
should take all the water from the bore-hola
and leave Government to take their water from
other parts of the farm, the question of tbo
right of the Government to take more than
16,000 gallons is in dispute and must be settled
at some time or other. The only other question
is whether the well is within the area said to be
expropriated. There is no evidence as to where
the margin of expropriated area is. McDonald
V. DUtriet Engineer of the Midlamd and North
Eoitem Railway (Juta 7, p. 290).
Mr. Sheil : The claim in this case Is for an
interdict. Tlie decision must depend upon the
question whether Government has given satis-
factory evidence of expropriation and of know-
ledge on the part of Gillet Bxpropriation
occurred nearly twenty years ago, and the Govern-
ment has been In occupation ever sinoe.
Unfortunately Alberts cannot remember
receiving notice, and it is unfortunate
that the records were burnt. The list and plan
however were found in the debris and as Act 9
of 185S requires notice the presumption is that
notice was given.
Buchanan, J. : The correspondence of 1881
refers to expropriation. The question remains
as to what was the extent of the expropriated
area.
Mr. Sheil : Gillet is an old railway contractor
and admits that his opinion was that 60 feet
were usually taken on each side in railway
expropriations- Moreover be was employed by
the syndicate and caw the well. Thus hia oaee
differs from that of Bower v. Colonial Gopem'
ment. Bower bought innocently and without
notice. Gillet was no party to the contract.
Not a fractional part of the land expropriated
in the Colony is registered. Concluding portion
of section 12, Act 9 of 186S, shows that in certain
cases at least thers is an absolute vesting of tltle^
r
191
It u dear that tbis was tan out and out Bale. In
ti» ciM of aitt^an. ▼. Jtf. and 8, Railway
(lOJutt, p. 291), there was an actual transfer,
■nd tlie Court lielci tbat the purcha«er could
M with the land as he pliaeed. If
the Court f^hould held that euffident eri-
deuoe of expropriation has heen given, and that
Gillet had notice of such expropriation, then
uy water riaing on the land belongs to the
Goretament, provided it ie not accustomed to
flow in a defined channel to a lower proprietor.
StnAem T. Cape Ttnvn, Distriet Waterworks Co.
(9 Juta. p. 68>. Oillet has suffered no injury.
The water must mn uphill if it flows from the
liore-hole to the well. The evidence is that it
flows the other way. The pipe onlj goes Ave or
nx feet below the fcround, and it is impossible to
find thai the water is from an artesian supply.
An interdict can only be granted where plaintiff
has no other remedy. Here the plaintiif has the
remedy in his own hands, in that he can take
the plug out of his pipe. The Government does
not el^m under the contract, but by virtue of
the expropriation.
Mr. Innes: There is no hardship involved in
holding that Oovemmfut has no title without
reg^istration, except in cases of freehold. As to
wheihtr there is any statutory title given by Act
9 of 185f», section 12, ** sufficient title" there
kna sufficient for the use of the land and the
kcqni»^ition of materials ; the Gommis ioner can
the land, but if he wants domininm he
lUflt take registered transfer. In a recent case
Alie Oovernment succeeded in an action claiming
tavnsfer of expropriated land.
Mr. 8heil : The caee of Colonial Government
w- G^erteH^aeh*i Executor (7 Shell, 60) went
\rj default There was a plea in that case
to the effect that there was no provision in Acts
9 of 1868 of 19 of »874 to compel a person whose
Imnd was expropriated to pass transfer, but the
point was not argued. There is no statutory
■piOTleion which compels the owner of quitrent
Imnd, which has been expropriated, to pn^s
transfer.
De Villiers, C.J. « It appears that on the farm
Mew Kruidfontein. of which the plaintiff is the
rei^iatered owner, there is a well just within the
4liatanee of thirty feet from the railway line
leshdingr to Beaufort West. From this well, as
well as from other sources of water supply gn
tiae farm, the Railway Depariment has taken
water for railway purposes in excess of 16,000
^m'lofom per diem. Their right to use 16,C00
calkMis ffer diem under a contract with the pre-
•eat and former owners of the farm is not dis-
puted, and the question to be determined is
wjbetber the plaintiff is entitled to an interdict
/MlmijiiDg the use of the excess. But for that
contract the plaintiff would be entitled to re-
strain the taking of any water unless the Depart-
ment can show that by reason of the expropria-
tion of part of the land for railway purposes
they have acquired the right to ufeall the water
rising in the well. No portion of t)ie expro-
priated land has been cutoff from the farm, and
registered in the name of the Government, and
the only tept, therefore, of expropriation is the
actual u^er of expropriated land for railway
purposes. Thus it would be vain for the plaintiff
to attempt to prevent the Department from
using land on whioh there is an embankment
for the line, however wide that embankment
luiuht be, or from using buildings erected for
railway purposes. But there is nothing on the
ground to indicate that the land on which the
well is had been expropriated, nor was there
any indication of the kind at the time when the
plaintiff purchased the land. He bought without
notice that the Department claimed the well
unless the fact of the well being just within
thirty feet of the rail on that pide could be
taken as notice. But there is no enactment
fixing a distance of thirty feet on each pide of
the line as the extent in respect of which expro-
priation ip9 • facto takes place. It is true that
a plan was produced showing an intention on
the part of the Government to take a strip of
land extending to a distance of thirty feet on
each bide of the rails, but that plan comes out
of the defendant's possession. There is no proof
that this iilan was ever shown to any of the
owners of Ihe farm, or that any notice was given
to them of the extent of land intended to be
expropriated. It would have been competent
for the Government, after hona fide expropriat-
ing that extent of land, to claim a registration
of the title thereto in their own name. Such
registration wouM have rested the ownership in
the Government, and the plaintiff would be
owner of the remsinder only of the farm. As
mattern stand, he is the owner of the whole
farm ; but of course he cannot interfere with the
use by the Department of land hona fide oc-
cupied for railway purposes. It has not been
proved that the well is so occupied, and the
interdict neked 'or rau-t be granted with costs.
LPIaintiffV Allorneys. Messrs. Sauer &
Standen ; Govern ineTit Attorneys, Messrs. J.
k H. Reid k Nephew.]
POWRIK V. POWBIB.
I 1897.
iMay 20th.
Judicial ^epara ion Consent paper.
This was an action for judicial separa-
tion.
Mr. Graham for plaintiif; Mr. Close for
defendant.
192
Mr. Graham Mid the dedaration set forth
that tha parties were married in June, 1871, in
Perth, Scotland, and afterwards came to Gape
Town. There were six children of the marriage
—five of them minors. In 1889 defendant left
Cape Town, and was away for six years, during
which time he refused to oontribute to the
maintenance of his wife and family. About
May, 1896, he returned, and between that time
and the present year he had yiolently assaulted
his wife. He had given way to intemperate
habits, and his wife was in danger of him. Mr.
Graham read an agreement made between the
parties, conronting to the separation, and to
their supporting themselyes separately, Jte. A
document consenting to judgment in terms of
the agreement had been signed, and judgment
in terms thereof was prayed.
Mr. Oloee appeared on behalf of defendant to
consent to judgment in terms of the consent
paper being entered.
Mr. Justice Buchanan said the Court was
averse to giving judgment simply on agree-
ment of parties in matrimonial cases. The
facts on which judgment wm iriven should be
on record from evidence given in court.
Mr. Graham having been heard,
Mr. Jusiice Buchanan said that in a case of
divorce such an application would never be
granted on a mutual agreement of the parties.
It was, however, different in a judicial separa-
tion case, where the parties might come together
and whera the judgment of the Court did not
terminate the marriage. The Court would,
tiierefore, give judgment in terms of the consent
paper.
[Plaintiff's Attorney, C. C. Silberbauer;
Defendant's Attorney, J. Ayliff].
SUPREME COURT.
[Before the Right Hon. Sir Hknbt db Yil-
LlBBfl, K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdobp.]
THOMSON AND 0THBB8 V
BBNNBTT.
jMay 21st.
This was an action to recover a sum of £7^\
Ss. 7d., due as balance of a judgment in an
action obtained against defendant in the High
Court of Justice of 1893.
Mr. Innee, Q.O., for the plaintiff.
Mr. Molteno, for the defendant, appeared
confess judgment.
to
HETDKNBTGH V. VALOONBB AND
ANOTBBB.
Tender — CoetP.
J 1897.
}May 21 at.
This was an action brought by Benjamin G.
Heydenrych against Mary Falconer and Robert
A. Falconer.
The plaint]ff*s declaration alleged :
1. The plaintiff resides at Cape Town : the
two defendants are married to each other with-
out community of property, anu likewise reside
at Cape Town.
2. The plaintiff is entitled to the posseasion of
certain carts, wagon, horses, harness and hoose-
hold furniture, &c., more fully described and
mentioned in a schedule hereunto annexed,
which articles the plaintiff let to the first-named
defendant, and she, the first-named deiendant,
assisted by her said husband as far as need be,
took to lease, upon the terras mentioned and
referred to in a certain agreement of lease
dated the 18th November, 1896, and herennto
annexed, to which annexures the plaintiff craves
leave to refer, and have taken and held as herein
inserted.
8. The said agreement of 18th November
an extension of an agreement dated the 6th
February, 1896 which again was an extension
of a certain agreement dated 90th April, 1896,
to which lease of the SOth April the seocmd*
named defendant was a party and which he
signed as surety in soUdwm and joint principal
debtor with renunciation therein of Uie bene-
fieia ordinis sen eaooussUmU ; the second-named
defendant in like manner and subject to the
like liabilities became a party to and signed the
subsequent agreements, and more particularly
the agreement of the ISth November in para-
graph 2 referred to, as such surety in ioUdum and
joint principal debtor, with such renuncia-
tion as aforesaid.
4. By the said agreement it was stipulated
and agreed that the lease should extend over a
period beginning 1st November, 1896, and end-
ing Sist January, 1897, and that the defendants
should pay to the plaintiff at the end of CTery
month the sum of £6 per month as and for rent.
6. The lease in paragraph 2 mentioned ter-
minated on the Slst January, 1897, as was by
the said lease provided, and was not further
extended, and the plaintiff gave to the
defendants notice»in writing of such tennina-
tlOB.
J
193
t Then Ib now owIds by the defradaiitB to
tke pfauntiff the ram of £15 m and for rent dne
Oder the Mid lense for the Mid period of three
7. All things have happened, all oonditions
biM foltUled, and all timee elapsed, to entitle
the plaintiif to the poaeeMion of the articles in
the fifst aanexure menti ned, and to be paid
the nm of £16 aforeMid, yet the defendants,
lad cash of them, refuse to pay any part of the
laidsomortoretnni the Mid articles.
The plaintiff daims :
(a) Payment by the defendants and each of
them the sum of £16.
{h) That this Honourable Court do order the
dsfrndants and each of them to restore to the
plaiatlif the articles mentioned in annezure A
to this declaration annexed, or in default
thereof to pay the sum of £200 as and for
damages by them sustained in the premises.
ic) Alternative relief and costs of suit.
The agreemeoi of leaM of the 13th November,
1816, was an extension of a previous lease from
Irt day of KoTember. 1896. to end on 81st
Juuary, 1897, at £5 a month ; also an extension
of aa option of purchase (given to the lessee) to
the Sist January, 1897 ; the purebaM price to be
1139 ; the option not to be available if the
earreat rent is not fully satisfied.
The foUowlDg was the plea of the first-named
defendant:
L Defendant denies the allegations in para-
grsph 2 of the declaration, more especially
dddes that ahe had any knowledge of the terms
ef the second agreement annexed to the dedara-
tioB which was signed by the second-named de-
tedant as holder of her power of attorney.
3. As to paragraphs 6 and 6, defendant
rsfers tiie Coort to such proof as plaintiff may
•ddnce , and says that extensions were granted
hom time to time and the sum of £107 received
« aoconnt by the Mid plaintiff, with the distinct
nnderBtanding that on the payment of the
balance doe and the current rent the furniture,
ftCL, referred to in tbe agreement would be
iflMaad from pledge.
4. Payment of the Mid balance, tcgether with
the rent» wm ofiEered to the plaintiff prior to the
aetfam brou^t in full Mtisfaction of all ad«
vaaoM given on security of the said furniture.
ft. l>efendant admits that the Mid rent is due,
hat statM that it was tendered prior to action
IL Defendant denies allegation in paragraph
7 of the declaration, and Mys that on the offer
of £189 and the rent due plaintiff refused to
saaeel the agreement.
c2
7. Defendant specially pleads that the
furniture and other articles mentioned in tbe
first agreement were never absolutely sold or
ceded to the Mid plaintiff, except by way of
pledge, but that a form of Mle was merely
adopted for the purpoM of securing the advances
made to the defendant by plaiutiif, and that
such furniture and other articles was never the
property of the plaintiff or in his possession.
Defendant claims that plaintiff's claim be
dismissed with costs.
For a claim in reconvention defendant craves
leave to refer to matters pleaded above, and
again tenders £189 and £16, as rent, being the
balance due to plaintiff under the said agree-
ments; and claims cancellation of the said
agreements on payment of the said sums with
COStF.
The replication in convention was general.
The plea to the claim in reconvention denied
that any legal tender had been made in satis-
faction of plaintiff's claim.
On these pleadings is ue was joined.
Mr. MacQregor for the plaintiff.
Mr. MaoLachlanfor the defendants.
After evidence, the plaintiff stated that he
was willing to accept the sum alleged to have
been offered to him, £189, with the rent for
the property amounting to £15.
The Chief Justice Mid: As the plaintiff has
expressed his willingness to receive the £139 and
the £lfi, it was not necesMry for the Court to
deal further with that point or seek to construe
the agreements. The only question is, whether
the defendant should pay the costs. There have
been many decisions of the Court where it has
been held that the actual tender of money was
not required if it were perfectly clMr that the
person to whom it would be tendered would re-
f UM to accept it. I am of opinion that the ten-
der in the present case was not in the form
alleged, and no evidence has been produced in
proof of the allegation of tender. It has been
stated that the defendant received advances of
£160 and £100 fiom a financial agent attout that
time, but there is no proof that at the time of
the alleged tender he actually held the sum
stated in his hands. The judgment will there-
fore, be for the plaintiff with costs; that is,
payment of £189 and £15) and failing payment
of each of the Mid sums within forty -eight
hours, the goods in question to be delivered as
agreed upon.
[Plaintiff's Attorney, V. A. van der Byl
Defendants Attorney, H, P. du Prees.]
194
BTTNBB V. imnER.
j 1897.
I May 21st
This WM an action for divoroe broigbt by
Albert Henry Sytner, managing director of the
firm of P. Bamet A Co., Port Elisabeth. Mr.
Searle, Q.O., appeared for the plaintiff. There
was no appearance for the defendant.
Mr. Searle stated that the parties were mar-
ried on the 4th February, 1886. The plaintiff
left Cape Colony for England in November last
year, leaving his wife in Port Elisabeth. Be-
tween let January and February last it was
alleged that Mr*. Sytner committed adultery
with an engineer at that time resident at Port
Elisabeth. By reason of that adultery Mr.
Sytner claimed damages from the co-respondent
to the extent of £1,000. Co-respondent had ad-
mitted the allegation of adultery so far as it
ooncerned him, tendered £60, and offered to
pay the costs to date. That offer had been re-
fused, but since that time co-respondent had
increased the amount tendered, and guar-
anteed the costs of the action, and this offer
Mr. By tner had accepted, eo that the proceedings
would be dropped against the eecond defendant.
Mrs. Sytner was at present in England, but
before leaving South Africa she had signed a
power of attorney to accept process.
Reginald Barry, from the Registrar's Office,
proved the marriage.
Albert Henry Sytner, the plaintiff, said his
wife's name was Rose Jackson. They were
married at Port Elisabeth on the 4th February
1886. Witness was managing director of the
firm of P. Bamet k Co. (Limited). There were
three children of the marriage— two boys and
one girl. There was an ante-nuptial contract,
by which he settled a life policy of £600 upon
his wife. Witness left for England on business
in November of last year. Before leaving Port
Elizabeth he gave up his house to a friend of
his, Mr. Morris, but arranged with Mr. Morris
that his wife should have three rooms in the
house. It was arranged that she should have
her meals at the Grand Hotel, which was oppo-
site the house. His wife was able to draw what
money she required, and he provided
her with a servant. While he was in
England he had letters from his wife by
every mail. He returned to Cape Colony on
17th February, and on arriving in Table Bay
was surprised when his wife came out in a tug
and met him. In answer to his questions she
said she had been very uncomfortable in Port
Elisabeth. While in England witness received
information that Mrs. Sytner had had to leava
Mr. Morris's house, and that evening, the first
opportunity he had, he asked her why she had
to leave the house. After equivocating for a
time, his wife admitted that Mr. Morris had
ob)s<'ted to certain gentlemen coming to her
room. After a lot of persuasion he managed to
drag from her the confession that she had a man
in her bedroom and that Mr. Morris had dis-
covered them. Witness had never spoken to
co-respondents His wife asked his forgiveness,
but after taking advice of his cousin and a
clergyman, the matter was placed in the hands
of an attorney. His wife went to England by
the next boat, and he« at her request, paid her
expenses home. Before she left she knew that
proceedings would be taken.
Walter Vernon Morris, in whose house Mrs.
Sytner lived, said he was not intimate with
co-respondent. The first time he saw him was
in the Qrand Hotel, Pore Elizabeth, where he
(co-respondent) and some other men were
sitting at a table drinking champsgne. Witness
and his wife had their meals in the Grand
Hotel, and frequently saw co-respondent there.
On 2Dd February co-respondent accompanied
Mrs. Sjrtner from the hotel to her rooms after
dinner, walking across the street without his
hat. About nine o'clock that night witness
heard someone speaking in Mrs. Sytner 'a bed-
room. He looked in at the window and saw
co-respondent in the room. Later the same
night his wife was attracted by a noise, and
saw co-respondent in the room. Witne a went
to Mr. Rogaly, at the Algoa House Hotel, who
held Mr. Sytners pover of attorney, and in-
formed him of what had taken place. Two
nights later oo-respondent was again in Mrs*
Sytner's bedroom, and witness waited outside
until he came out, and asked him what he
meant by his conduct. Witness told Mrs. Sytner
he would not allow such things to go on in his
house, and she left at his request on the follow-
ing morning.
Mrs. Morris corroborated her husband's state-
ments, and described what she heard and saw
on the nights of 2nd and 4th February.
The judgment was : Decree of divorce as asked,
the forfeiture of all benefits from the ante-
nuptial contract, and Mr. Sytner to have the
custody of the children.
[Plaintiff's Attorneys A. Steer.]
loi
SUPREME COURT.
Before llie Right Hon. the Chief Jtutioe (8ir J.
fl. DB ViLLiBBS, P.O.. K.C.M.G.). Hon.
Mr. Justice Buchanan, and Hon. Mr.
Juetiee Maabdorp.
TAK aOOALKWYK V. HAUMAN.
1897.
May -26th.
., 96th
June 3rd.
„ 4th.
Riparian proprietors — Perennial streams
— Prescription — Reasonable use —
Total diversion — ^Extraordinary Ube
— Irrigatiou--Returu of water —
Tribuury.
H., an upper riparian proprietory
dhertecl by a fui^oic the loater in a
perennial aiream F. and wed it for
thepurpoM of iirigatiofi,
Aftei- irrigation the water teas
alloioed to find its way into a iribu-
tary of the F. river; the tributary
joining F. some distance below t^ie
farm of H.
fn 1897, during an exceptionally
dry season^ H. diverted all the water
in the F. river.
8., a lower riparian proprietor
nbtained his loaterfrom the F. river
by tneans of a furrow from a dam
situated on C, a farm lying beiweeti
the farms of 8. and H.
S. vas in consequenee ofH.'s diver-
sion deprived of the use of any
Water. H. maintained that he was
entitled to take the water, not on the
ground tluU he Iiad a prescriptive
right to all the walei' in this river,
btU thai he had a prescriptive right
to divert and use for irrigation a cer-
tain quantity, irrespective oftheques-
lion as to whether this entailed a total
diversian of the water ar not^
The Court held fliat this teas not
a reasonable user by H., and that H.
had ml established any such right as
alleged.
Thla was an action brought by Willem J. D.
van Schalkwyk against Johannes Stephanus
Hauman for an interdict in regard to the use of
certain water in the Frenohhoek Rirer, and for
damages in the sum of 4100.
The plaintiff's dedaration alleged :
1. The plaintiff is the registered proprietor of
the farm 2anddrift, in the district of the Paarl ;
the defendant similarly owns a divided portion
of the farm Laborie, in the said district.
2. A perennial stream, called the Frenchhoek
River, flows over the farm Laborie, then over
certain other farms, and thereafter it flows into
and over the plaintiff's farm. The share of the
farm Labori owned by the defendant is situated
upon the eastern bank of the said stream, but
another perennial stream crosses the defendant's
said share and joins the Frenchhoek River at a
point between the properties oi the defendant
and plaintiff.
8. Ever since the year 1889 the plaintiff and
his predecessors in title have led out the water
of the Frenchhoek River by means of a dam
situated on the farm Cabriere and a water
furrow leading therefrom. The dam is above
the plaintiff's farm, but below the defendant's
farm in the course of the said stream, and the
plaintiff is entitled to continue so to use the
said water.
4. At divers times between the Ist day of
February and the 13th day of March J897, in*
dttslve, the defendant, by means of a dam
placed in the said stream where it paisee his
property, led out all the water of the said stream,
which he used for irrigating his pasture lands,
in such a way that the water could not after
such use flow baok into the channel of the
Frenchhoek River.
6. By reason of the defendant's wrongful act
as aforesaid, the plaintiff was deprived of a
reasonaUe use or of any use of the water of the
said river. The plaintiff during the said period,
and in consequence of the said act, was deprived
not only of water for irrigation, but also of
water for distilling and for domestic use, and
he sustained damage to the extent of AlCO.
The plaintiff claimed :
(a) Payment of the sum of MQO for damages
as aforesaid.
{b) An order interdicting the defendant from
doing anything to interfere with the plaintiff's
use of the water of the said stream, as the same
has been used by himself and his predecessors as
aforesaid.
(c) An order interdicting the defendant from
so using the said water for irrigation as to make
it impossible for the said water to return to the
channel of the said Frenehhoek River.
196
(d) Altematiye relief.
(ff) GoetB of suit.
The defendant's plea was as follows :
1. The defendant admits tbe allegations in
paragraph 1 of the declaration, and says that
the plaintiff's farm is also known by the name
of Paulina's Dal, and the defendant's farm by
the name of Eeur Valley, which consists of two
portions of the original farm Laborie, or La
Brie, ooe of which was purchased by the defen-
dant from his father, in the year 1849, and the
other was thereafter purchased by him from his
father's executors, and of Itoth of which he
received transfer by two deeds dated the 3rd
September, 1862.
2. The defendant admits the allegations in
paragraph 2 of the declaration, and says that
the Frenchboek River flows over several other
properties before reaching the farm Laborie, and
that the other perennial stream, referred to in
the said paragraph, joins the said river at a
point on the farm Cabri^re, above the plaintiff's
farm, and above the point at which the plaintiff,
by a watercourse, diverts water from the said
river for use on his said farm.
8. As to paragraph 3, the defendant has no
knowledge of the date at wnich the plaintiff or
his predecessors in the title first led out water
from the dam by the water furrow mentioned in
the said paragraph, and does not admit that,
even if the plaintiff and his predecessors in title
have used the water as alleged since the year
1839, the plaintiff has thereby acquired any
prescriptive right as against the defendant to
continue to use the said water to any greater
extent than as a lower riparian proprietor he
may be entitled to the reasonable use of the
same, subject to the defendant's rights herein*
after set forth.
4. For a time long anterior to the year 1849
there existed, and still exists, on the French-
boek River, during all dry seawns, a dam,
situated on the portion of the farm Laborie
owned by the defendant, by which dam nearly
all the water of the said river flowing at that
spot in times of scarcity is, and has been,
caught, and from the said dam the said water is,
and has been, diverted by a water furrow
running across the said portion of the farm
Laborie.
6. At a time, thirty years and upwards before
the commencement of this action, tbe water so
diverted by the said furrow was, at a point in
the said furrow, again diverted from its previoua
course, by a water furrow, leading it to the
defendant's homestead, gardens, orchards, and
cultivated lands on his said property, and during
the period of thirty years and upwards the
defendant has, at all times, had and enjoyed tli«
reasonable use of the water so dlTarted and led,
for domestic purposes and for the purpoeea of
irrigation, cultivation, and distilling upon hia
said property, after which use bo much of ih%
said water as might remain has not returned
directly to the Frenchboek River, bat has flowed
into the other perennial stream mentioned in
the declaration.
6. The defendant specially denies that in tiie
year 1897, or at any time, he nsed« or that he
claims to use, the water so led as aforesaid for
irrigating his pasture lands.
7. Save as aforesaid, he denies the allegationa
in paragraph 4, and he denies all the allegations
in paragraph 6 of the declaration.
8. The defendant claims no more than iho
right, reasonably, to use tbe water, as ho hms
used the same for thirty years and upwards, and
says that he has, in the year 1897, only used the
water in accordance with his said right, bat the
supply of water at his dam, In the said river, in
times of scarcity during recent years, has been
diminishing by reason of the increase of colli-
vation by upper riparian proprietors upon the
said river, who take and use its water.
9. The defendant does not, in fact, divert or
use, save for domestic use. any portion of the
water flowing across his said property, in the
other perennial stream mentioned in the
declaration, which water flows down in the
said stream for the use of the plaintiff and other
riparian proprietors on the said river, and the
plaintiff has other sources of water supply for
his said farm, not derived from the said river or
perennial stream.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
The replication was general.
On these pleadings issue was joined.
Mr. Junes, Q.C. (with him Mr. Close), for the
plaintiff.
Mr. SchreUier, Q.C. (with him Mr. Graham),
for the defendant.
The facts appear sufliciently from the judg-
ment.
Mr. Tnnes, Q.G. : The plaintiff alleges that the
defendant has deprived him of a reasonable use
of this stream, or of any use at all, between
tbe 1st February and tiie ISth March last. The
defendant's claim is indefinite : he says he does
not use or claim to use all the water, but that
for 30 years he has used nearly all the water.
The water from Kriel's dam in terms of the
deed signed by defendant in 1866 was divided by
days. Defendant did not then claim any of this
water. There was very little cultivation then
on the eastern side and it was only after the
furrow bad been made that general oultivation
took plaoe. As to def endant'sown dam its period
isr
of ezisteBoe appean to be 28 ymn. Bovol'b dam
OB ChmmpAgne is apparentlj old, but does not
oatcfa moeh water now. As to plaintiirs own
dam on Cabriere he is, at between himself and
the lower proprietors, clearly entitled to use all
the water ooming from it It is undisputed that
between February and March plaintiif was
entirely deprired of his water and suffered con-
dderable damage thereby. It is also undisputed
thai defendant's farm Labor! had a Bubstantial
stream of water running in the furrow at that
time. He used more water than he was entitled
to as an ordinary riparian proprietor ; there is
no regiatered serritude, and therefore any right
he claims he must prove by prescription. De-
fbndant is not entitled to use the lower pro*
prietor's water because the proprietor above him
uses his. That is not a reasonable use ; he must
get his remedy from his upper proprietor. As
to the user, there is a conflict of evidence as to
whether the furrow was made in 1861 or 1868 ;
the onus is on the defendant, and if there is any
doobt as to tiie date plaintiff is entitled to the
benefit of it Even if it is held that the period
of prescription has been established the question
still remidns whether or not the user has been
the same. Plaintiff's remonstrances followed
hj the defendant's act in allowing the water to
come down would be sufficient to break prescrip-
tion. Defendant does not allege that this was
done as an act of grace. Increased cultivation
is no justification for taking more water than
formerly. There has been no trial made of the
stream in order to support the defence that the
water would not readi the plaintiff if allowed
to come down the bed of the river.
Mr. Bohreiner, Q.C. : The dam has clearly been
made thirty years,
Bochanan, J. : We are inclined to think that
the farrow to the mill was made more than thirty
years ago,
Mr. Bdireiner: And for the last thirty years
tite dam has taken all the water that it could
take, and the furrow has carried all that the
dam received. After such a period the water in
an artificial furrow becomes water to which the
owner of the land is entitled. Myhurgh v. Van
ier Byl ( Juta, 1, 860). We must admit that the
French Hoek River is a perennial stream ( Fan
H9$rden v. Wiew (1 App., 8). Ihe defendant
does not take more water than he is accustomed
to; as a faot« he takes less. Defendant is a
riparian proprietor of two streams ; from one he
only takes drinking water, and allows all the
rert to flow down. Van der Bpuy and Boux
ihoiild have been joined as defendants. There
ii no proof of damage by any user of defendant
No case has been made on which to found an
interdict. There is no evidence that the water
would ever havt» reached the plaintiff if it had
been allowed to flow down.
Mr. Innes : It is not neccBsary to join Van der
Spuy or Roux, because Van der Spuy has not
taken more than a reasonable share, and Boux
has not stopped the water at all. In Myhwrgh >.
Van der Bgl it was held that wheie each party
bad led water out of an artificial stream for
thirty years it acquired the characteristics of a
perennial stream, not that a furrow led across a
man's farm for thirtj years became a perennial
stream. We are not bound to institute proceed-
ings against all the upper proprietors in order to
help the defendant. If the quantity of water is
sufficient to be shared with the lower proprietors
the defendant must share it with them. Hangk
V. Van der Menee (Buchanan, 1874, 148).
CJLV.
Poetea (4th June).
The Oourt gave judgment for the plaintiff for
490 damages and costs of suit
The Acting Chief Justice said : The French-
hoek River, a perennial stream, taking his rise in
the mountains above the farm of one Kriel, flows
over the said property and through other farms,
down to and over the farm Labori, thence on-
wards over succeeding properties till it reaches
the plaintiff's farm Zanddrift. The riparian
proprietors as a rule obtain their " drink " water
from springs on their own ground, but for farm •
ing purposes they lead water out of the river
by means of dams and furrows. These dams
are of the temporary character common in
this colony, and are washed away by the stream
when in winter flood, and are restored in sum-
mer when the flow of water slackens. The farm
Labori extends on both sides of the river, and
formerly belonged to defendant's father. By
purchases made in 1849 and in 1862, the defendant
became the owner of the portion of the farm
on the eastern side of the river. From the year
1778, as appears from a deciBion of the old Court
of Landdrost and Heemraden, a dam on Kriel's
farm fed a furrow on the western side of the
river, which furrow supplied the two immediate
farms and Labori with water for farming pur-
poses. The old homestead and cultivated lands
of Labori were situated on this western part of
the farm, and they are still supplied with water
from this source. On the eastern side water
was led out from a dam near the upper bound-
ary of Labori for the purpose of work-
ing a mill, the furrow from the dam running
near the river, and after passing the mill, and
serving a second mill on the next farm, Cham-
pagne, returned the water to the river. Both
these mills have long since been dismantled,
and the lower part of the furrow became brokeui
198
And fell out of we. The only cultivation on
this side of the river in former times waaof some
patches of garden used by the coloured people on
the farm, remains of which gardens still exist.
After the defendant purchased the eastern
portion of Labori, he built thereon, and planted
vineyards and orchards and made gardens, which
year by year he enlarged. Owing to the moist
nature of his ground, tbe dofeudaut did not
require to irrigate his vineyards ; but to supply
his orchards and gardens he led water out of the
river from the old dam, using a portion of the
old mill furrow, and making a new furrow to
his cultivated lands. The water so led out, after
passing tbe new homestead, was not returned to
the river, but the surplus not used found its way
into a tributary which joined the Frenchhoek
River some considerable distance below bis pro-
perty, but above the dam from which the plaintiff
obtained his water supply. From time to time
the several farms along the Frenchhoek River
were subdivided, large extents of land were
brought into cultivation, more and more
water was used by the upper pro-
prietors, and leFs and less water found
its way down the river. Defendant's farm is
only about twenty -seven morgen in extent, and
though recently he has planted additional vine-
yards, he has not to any great extent increased
his gardens and orchaids during the last twenty
years. As the tributary above referred
to ran through defendant's farm, and as there
were springs on his own ground, he did not re-
quire, and indeed would not use the river water
for drinking. The river water was used by him
for irrigation purposes and for distilling. Until
recently there was sufticient water in the river t»
supply defendant's needs without his taking the
full flow, and he allowed the remamder of the
water to run down in the river-bed. But owing
to the farmers above taking more water, the
flow to his farm had gradually diminished, and
this year being an unusually dry season, for the
first time he found it necessary to take all the
water in the river. Even though diverting all
the water, the delendant stated that he
had not sutticient for his require-
ments, and that his orchard and
gardens had suHered in consequence. Disput-cs
had arisen between the plaintifl' and defendant
during the last iiftcen years as to the user of the
river water. It is, however, only the total
diversion of the stream from the 1st February
to the 12th March last. of which the plaintiff
complains, and for which he claims damages,
and to prevent such total diversion in the future
he prays an interdict. To this claim the defen-
dant pleads the use for upwards of the period of
prescription of the dam and furrow on his land.
and the enjoyment of a reasonable uae of the
water thereby diverted for domestic purposes, and
for the purposes of irrigation, cultivation, and
distillation ; and he asseits further that he now
claims no more than the right reasonably to use
the water as he has used the same for thirty years
and upwards. Upon this plea issue is joined.
The rights of riparian proprietors to the joint
use of a perennial stream have been settled with
fair accuracy by a series of decisions of this
Court. The remarks oC Lord Kingsdown in the
case of Milfwr v. GUinattr (12 Moore, P. C,
131), have frequently been quoted as sum-
marising the principles t.o be applied in these
cases. His Lordship said : " By the general law
applicable to running streams every ripariaa
proprietor has a right to what may be called the
ordinary use of the wat«r flowing past his land \
for instance, to the reasonable use of tne water
for his domestic purposes and for his cattle, and
this without regard to the effect which such use
may have in case of a deficiency upon proprie-
tors lower down the stream. But, further, he
has a right to the use of it for
any purpose, or what may be deemed the
extraordinary use of it, provided he does not
thereby interfere with the rights of other pro-
prietors, either above or below him. Subject to
this condition he may dam up the stream for
the purpose of a mill, or divert the water for the
purposes of irrigation. But he has no right to
interrupt the regular flow of the stream if he
thereby interferes with the lawful use of water
by other proprietors, and inflicts upon them a
sensible injury." It is true the Privy CoonoU in
that case was dealing with the Canadian law, but
these remarks were cited with approval in a
more recent case which went in appeal from
this Court in regard to a dispute which had
arisen in this very neighbourhood, vis., The
CommiMwnerstfihe Frenchhoek MttnMj^iilf
V. Hugo ( 10 Ap. C, 344). The distinotioa here
noticed between the primary or ordinary use of
the water of a perennial stream and of the
secondary or extraordinary use was clearly
drawn in our own leading case of
Hongh v. Van der Merwe (Buch. 8.0. Rep.,
1874, p. 148), where the above-cited paaaage
was compared with the RomaDp£)utch authoti-
ties. As to the secondary or extraordinary one
of the water, which is what we have to deal with
in this case, it was laid down by the present
Chief Jui^tice (p. 166), that "by our law the
owners of land by or through which a public
{i.e, perennial) stream flows, is entitled to divert
a portion of the water for the purposes of irrign*
tion, provided, firstly, that he does not thereby
deprive the lower proprietors of sufficient water
for their cattle and for domestic puvposfM ;
199
moodly, thai lie uses no more than a juet and
iwoBtble proportion of the water cooBiBtently
with Bimilar riglitB of irrigation in the lower
proprietore; and tfairdly, that he returns it to
file public Etream with no other Iobb than that
which irrigation faas caused/' As to this
third proviso, as between the parties
to this salt, considering the manner of
ma of this water eince the defendant
came into poBsesfiion of his portion of Lahori. and
lineehe made ilie furrow by which he diverted
Ihii water, in my opinion the delenHant Ruffi-
de&ily complies with the requirements of the
Uw if he returns the purp'us water into the
Frcnchhoek River by means of the adjacent
tribatary, admittedly itself a perennial stream,
and one which joins the main stream ahove
plaintilTB dam. But this leaven the question
■till open whether or not the defendant is en-
titled, in timea of scarcity, to divert all the
water running in the river, Wh»-ther or not the
law conM not be made more f^uitnole to the ad-
vanced state of cultivation is a queBtion which
may be we 1 considered, but the law a« ir stands
is elear. This water is not requiredhy the de-
fendant for what is termed the ordinary or
primary use. The evidence shown that the de-
fendant does not need or use this water for
drinking purpose* or to water stock. What he
it for is for farming pnrpopes. This being
according to the author'ties cited, which
bare been repeatedly affirmed, he has by law no
ris^t absolutely to deprive the lower proprietor
of the whole flow of the river, unless
indeed he can establish an adverse
rigltit created by prescription or otherwise.
In his plea the defendant does not claim any
prescriptive right to take all the water passing
bis land, and in face of his own evidence such a
risht eould not be maintained. But as I jnder-
vtend his ease, the right he claims is the right to
tmke as much water now as he was accustomed
to take in previous year/', irrespective of the
quantity of the water which may be in the
riwer. If the flow of water is sufficient to supply
tbis qnabtity, any surplus may go down to the
lower proprietors ; if it is insufiicient, then he
ciaimB to be entitled to take the whole of the
water. And it is the user of the water in this
manner which he maintains to be
a reasonable user under the circumstances.
All the caaes show that what constitutes a just
and reasonable use of the water is entirely a
qoestion of degree, which depends on the facts
of each particular case. It seems to me obvious
that where no adverse right absolutely to cut off
the whole flow of the river is established, that
the qnantitj of water in the river is one of the
leading' circaipstaiices to be considered in deter-
mining on a reasonsable user. The mere fact
that hitherto, say, a third or a half of the flow-
ing stream has been sufficient for the require-
ments of the upper proprietor cannot, I think,
justify such upper proprietor in taking the
whole of the stream when the water has
diminished so as to supf>Iy only the quantity
which he formerly diverted. That is the way in
which the issue here should. I think be viewed. In
such a case the upper proprietor is not in law
entitled to have his own wantR supplied, while
he deprives the lower proprietor altogether <.f
any supply. When it is a question of flie
secondary use of the water, both parties must
abate equally. The defendant, however, in his
evidence tried to justify the diversion of the
whole of the stream on the ground that in dry
seasons the flow of water is too weak to be of
any benefit to t\)e lower proprietor. It is
difficult on the evideace before us accurately to
determiue the quantity of the water tnken by
the defendant during February and March last.
The plaintiff's attovney. wt^o vipited the locality
early last March, found thnt the ptream run-
nins: out at defendant b dam was two feet wide,
and from four to six inches de^p
according to flow, which was very plug-
gish. Other witnespes expressed opinions
for and against the probai)iIity of Piich a Ptream
being sufficiently ptrong to reach plaintiff's
property-. The coti elusion I hare coine to on
the evidence on the whoip is that the water
would reach t. e lower p:op:ietors if allowed to
flow free at defenclHnt'p dftm. The rea'e peveral
ways in which a reaPOTinMe proportion of it
might be taken, either by dividing the stream
or by leading the whole flow in turns. The
Ceurt, however, is not now in a position to make
a division of the water, as thee are inter-
mediate proprietors of ground between the
plaintiff's and the defendant'p farms who are not
before tlie Court. Indeed, one cf these pru-
prietors, Eoux, in the witnees-box, has
already set up his claim as a riparian
owner to share in the distribution of the water
Taking the view which I do of the facts, I must
hold that the defendant has failed in justifying
his diversion of the whole of the water of the
stream. The plaintiff has estimated his
damages from this diversion at £100. But the
evidence shows that the seapon was such that
the upper properties, including the defendant
himself, suffered from the effects of the
season. I therefore think the plaintiff is not
entitled to attribute his loss entirely to
defendant's wrongful acts, and in our opinion
£20 would be a fair amount at which to esti-
mate his damages, for which amount the
plaintiff will have judgment. This will •stabllsh
aoo
that M betir«en the parties to thU suit that the
diversion of the whole of the etream is not a
reasonable use of the water by the defendant.
Under these ciroumstances it is not advisable
to grant an interdict, which could only lie
framed in general terms, and which would re-
quire an action to prove whether or not it had
not been complied with. As the plaintilf has
succeeded in his contention, he is entitled to
costs. Judgment will therefore be entered for
the plaintifE for £2 • damages and costs of suit.
[Plaintiif^s Attorney, Y. A. van der Byl;
Defendant's Attorneys, Messrfi. Walker &
JiAwbsohn.l
SUPREME COU RT.
TBefore the Right Hon. the Chief Justice (Sir
J. H. DB ViLLiBBa, P.O., K.G.M.a.), Hon.
Mr. Justice Buchanan, and Hon. Mr.
Justice Maabdobp.]
PROyiSIONAL ROLL.
AZIZ v. RAOESM.
\ 1897.
{May S8th.
1 1 Mr. McLachlan moved for judgment under
Rule 829 for an account.
Application was granted.
FSBI BTATB PBOSPBOTINO 8TNDICATK V. B.
J. MINNAAB.
Mr. Close applied for judgment for 460
under Rule 329, value of certain shares and
costs.
The application was granted.
RHODBN V. FOUBIB.
This was an application for provisional
sentence on a mortgage bond for £200 with
interest and costs, and for the landed property
specially hypothecated to be declared execut-
able.
No counsel appeared when the case was
called on.
After the adjonmoient for lunch,
Mr. Close appeared for the applicant, and
stated that subeequent to the case being called
in the morning he had been instructed to apply.
Tlie Coiirt p^rapted the application.
GRNBRAL MOTIONS.
Be ALIWAL NOBTH BOABD OF EZB0UTOB8.
Mr. Molteno applied for an older Im
terms of the fourth and final report
of the official liquidator, as to the settlement
effected with debtors to the company, distribu-
tion of assets, disposal of Ltooks, and remunera-
tion of the official liquidator.
The application was granted.
1897.
NBL AND ANOTHBB V. DU TOIT.
I May 28th.
^ .. 29th.
(
„ Slst.
June let.
Contract — Construction — Interdict —
Damages.
A perennial utream flowed ocer the
farms Hoeko Rietfontein and Welte*
vreden.
Part of the xoater therein hadjor many
i/ears been diverted hy a icatercouree
hading to the farm Weltevreden,
By a contract behoeen N. and 1>.,
ownere of eub-divided portions of
Weltevreden, it was agreed that N.
should have three clear days undix^
turbed use of the water Jrom the
watercourse.
The children of N., his successors in
title, brought an action against D. on
the ground that he was in the habit
of diverting the water, when his turn
of waterleading came on, at a y^ot
near plaintiff^s boundary, but that
when plaint^ s turn /or wnterlead*
ing came on D . returned the water
into the watercourse at a spot com-
niderably higher up, whereby the
plaintiffs did not get their full three
clear days' use oj the wa^er*
Plaintiffs claimed that they ,oere eu"
titled to have the loater reach their
boundary at the time appointed/or
the commencement of their water*
leading.
The Court held that they were no
entitled, but as plaintiffs were willutg'
to forego their strict right and to
accept a compromise by which D.
should return the water at the spot
where he tooh it out, judgment was
entered accordingly*
201
ThiB was an action brought by Charl John
Hel and Pieter Johannee Nel for an order as to
the oae of a certain stream : also for an inter-
dict and £600 damages.
Mr. Innes, Q.G. (with him Mr. Molteno), for
theplaiatifEB; Mr. Schreiner. Q.C. (with him
Ur. Seatie, Q.G., and Mr. MoGref^or) for the
defendant*
The pilaintiffd' declaration was as folloa 6 :
1. The plainttfCa and defendant are all
finneTa^ residing 'n the district of Ladismith.
2. A QSTtsin perennial stream of wat-er rises
in the Zwarteberg Mountains in the said dis-
tiiot, and thereafter flows down to and over the
farms Hoeko, Rieifontein, and Weltevreden.
The plaintiff annexes hereto a rough diagram,
marked ** A«" which shows the position and cer-
tain Babdiyinons of the said farms, and also
the conrae of the said stream, and he prays that
the said diagram may be considered as forming
part of this declaration.
3. The plaintiff C. J. Nel is the registered
owner by separate title of lot 6 of Welteyreden ;
he also owns certain subdivided shares of lots 3
and 7. The plaintiff P. J. Nel is the registered
owner of certain other subdivided shares of lot
3, and also occupies, under a contract of lease,
lot 6 and a subdivided portion of lot 8 registered
In the name of his father, the late Johannes J.
NeL The defendant is the registered owner of
lots 1, 2, and 4 of Weltevreden, and he also owns
the farm Bietfontein and certain subdivided
shares in the farm Hoeko, which it is not neces-
sary for the purpose of this case to specify.
Certain water of the said stream has for very
many years been diverted at a spot marked
**XX"npon the said diagram, and been conducted
therefrom by means of a furrow to the farm
Weltevreden.
4. On the 1st February, 1887, a notarial deed
was entered into between the defendant, who
then owned lots 1 and 2 of Weltevreden, and one
J. J. Net sinoe deceased, who was the father of
the plaintifb and their predecessor in title, and
wlio at the time was registered owner of lot 3 of
the said farm, a copy of which deed is hereunto
aanezed and marked with the letter " B." After
the execution of the said deed, the defendant
heeame the owner of lot 4, and the said J. J.
Kel became the owner of lots 6, 6, and 7.
6. In terms of the said deed it was agreed by
the defendant that the said J. J. Nel, of Wel-
tevreden, should have the free and undisturbed
use of so much of the water in the stream
hereinbefore mentioned as ran in the water-
eonrse aforesaid past a certain mill on the farm
Hc»eko (which mill is marked upon the diagram
aanezed^ down to the farm Weltevreden '* for
the space or time of three full days, that is to
J>2
say, from Monday morning at six o'clock till
Thursday morning at six o'clock in each and
every week." The said deed was thereafter and
still remains registered with the defendant's
title deeds to the shares of the farm Hoeko.
Rietfontem, and Weltevreden owned by him.
6. Thereafter, in the year 1890, the then
owners of lots 3, 6, 6, and 7 of Weltevreden,
divided between them the right to the said
water secured as aforesaid. One Barker, who
then owned portion of lot 7, was awarded a turn
of four and a half hours at six o'clock on each
and every Mod Jay, and at lO.SO o'clock in the
said day the turn of water-leading for land now
owned by the plaintiffs commenced. The said
agreement of division has been observed by the
said parties and their successors ever since, and
is still of binding force and effect.
7. Thereafter the defendant acquired five-
sixths of the water rights of the said Barker,
equivalent to a turn of 3f hours, commencing
every Monday morning at six o'clock, and the
plaintiff J. Nel acquired the remainder of
this said right during a period of three-quarters
of an hour in each and every Monday morning.
The plaintiffs and the defendant are now the
only persons interested in the water dealt with
by the deed in section 4 herein referred ta
8. By reason of the premises, the defendant,
as owner of lots 1, 2, and 4 of Weltevreden, is
entitled to use the water aforesaid upon the
farm Weltevreden from Thursday morning at
six o'clock until Monday morning at 9.46 o'clock,
from and after which last-named hour and dur-
ing the continuance of their turn of leading
until Thursday morning at six o'clock, the
plaintiffs are entitled to the free and undis-
turbed use of all the said water upon their shares
of the farm Weltevreden.
9. The plaintiifs contend that it is the duty
of the defendant either so to use the water that
the full flow of the stream may ci oss the boun-
dary of the lot No. 5 at 9.46 o'clock every
Monday morning, or else to discontinue the use
of the said water at 9.46 in the said morning at
the same spot where he com menced to use it at
six o'clock a.m. on the precedini; Thursday, so as
to allow the plaintiffs the full and undisturbed
use of the said stream for the number of hours
of their water-leading.
10. The defendant has continually during the
years 1896 and 1896 (a) used the water to which
he was entitled as owner of Weltevreden upon
his portions of the farms Hoeko and Bietfon-
tein, and thereby prejudiced the plaintiffs in
their uee of the water to which they were
entitled on Weltevreden ; (b) commenced his
turn at water-leading at or near the boundary
of lot 4 of Weltevreden, and concluded it on
202
the fftrm Hoeko at ft spot near the mill marked
upon the eaid diagram ; {e) &iied to remove
dams and obetruotions placed by him
in the channel of the Baid stream,
and thus compelled plaintiffs to dear
away the said obstructions before their turn
of water could be utilised ; (d) by himself, his
serrants, and agents, polluted and contaminated
the said water by washing clothes and depositing
filth therein.
11. By reason of the defendant's wrongful and
unlawful acts as aforesaid the plainti£b have
luflered damages in the sum of ££00,
The plaintifEs claim :
(«) An order compelling the defend-
ant either (I) to use the said water
during his turn of water-leading so as to allow
the full stream thereof to flow free and un-
disturbed oTer the boundary of lot 6 aforesaid
at the oommenceihent of the plaintiffs* turn of
water-leading ; or (8) to return the full flow of
the said stream into the course by which it runs
down to the defendant*! land at the same spot
at which in each occasion of water-leading he
commenced to use the said stream.
(,b) An order interdicting the defendant from
making any use upon the farms Hoeko and
Rietfontein of the water which formed the
subject of the notarial agreement of the Ist
February, 1867.
(o) An order interdicting the defendant, by
himself or his agents, from polluting the water
of the said stream, or from placing any obstruc-
tions therein whidi interfere with the free flow
of the water daring the plaintiffs* turn of water-
leading.
(d) Payment of the sum of £600.
(«) Alternative relief.
(/) Costs of suit.
Annezure B contained the following clause :
*' Now, therefore, the appearers do hereby agree
that the said Johannes Jacobus Nel, or his heirs,
administrators, or assigns, shall have the free
and undisturbed use of the aforesaid stream of
water coming from the said mill at Hoeko for
the space or time of three full days, that is to
say. from B(onday morning at six o*clook until
Thursday morning at six o'clock in each aad
•very week. The said Johannes Jacobus Nel
shall be bound to assist, when called upon by
the appearer of the first part, to dean and keep
in repair the whole length of the watercourse
from the mill to the dweUing-house of the paid
Pieter Cornells du Toit. In consideration
whereof the said Pieter Comelis du Toit doth
hereby acknowledge to have received from the
said Johannes Jacobus Nel the sum of one
hundred pounds sterling (£100).*'
The d fendant's p!ea and claim in reoonven*
tion were as follows :
For a plea to the declaration, the defendant
said:
1. He admits the allegations in paragraphs 1
and 2 of the plaintiffs* declaration.
2. Ks to paragraph S. defendant admits that
the stream therein referred to has for many
years been diverted at the spot marked XX on
the said diagram. He says that when he entered
into occupation of the farm Weltevreden, in or
auout 1869, the water of the said stream waa
diverted at the said point XX, and there waa
also a dam at the point X on the farm Welte-
vreden already constructed, and that a stream
of water was taken out at the said point for the
joint use of himself and J. J. Nel, father of
plaintiffs, as owners of portion of ^ eltevreden.
5. In or about the year 1867 the furrow from
the dam XX was continued from the boundary
of the farm Rietfontein to a sluice on the farm
Weltevreden, where the said furrow joined the
water taken cut of vhe dam X, and it was so
arranged between the said J. J. Nel and the de-
feodant that water should be taken out at XX
at the same hour as it was turned out at X.
4. Theretofore the agreement '* B " annexed
to the declaration was entered into, and the
defendant says that during and since the yfear
1867 up to the commencement of this action de-
fendant has at all times tuined off and used the
water of the said strean at any point below the
mill shown upon the said plan as might suit hia
convenieoce, but without interfering with the
rights of the paid J. J. Nel or the plaintiffs
under the agreement of 18'>7 ; and, subject to the
above, the defendant refers to such proof as the
plaintiffd may produce of the other allegations
stated in the said paragraph 3.
6 He aCmits the allegations in paragraphs 4
and 6, save that for the terms of the said deed he
craves leave to refer to the document it^lf .
6. As to paragraph 6, he admits that J. J. Nel,
the owner of lots, entered into an agreement
whereby the owners of the other lots in the said
paragraph referred to obtained certain rights to
share in the water of the said stream aeoored
under the agreement ** B,*' but for the terms of
the agreement between J. J. Nel and the said
owners he craves leave to refer to the agree-
ment itself. He has no knowledge as to the
observance of the said agreement between
Barker and his co-owners, and craves leave to
refer to such proof as may be adduced thereof.
7. As to paragraph 7, he denies that he at any
time acquired five- sixths of the water rights of
the said Barker, as therein stated, or has made
any agreement to that effect with the said
203
Btiker. He hae no knowledge as to whother
the plaintiff C. J. Nel has acquired any of the
■udiighta.
8. He denies that he has acquired rights, as
rtatedin paragrapn 8, to the uae of water of the
tUeam In the manner and to the extent stated
Va paragraph 8, and says that the plaintiffs are
enUUed to the use of the water secured to them
\yy the agreement " B/* as modified by the sub-
nquent agreement wltb Barlter and others, aod
that they have at all times enjoyed the said use
withont let or hindrance from him, the
dsfendant.
9. As to paragraph 9, the defendant denies
that there is any agreement whereunder he is
boond to deliver the water across the boundary of
lot 5 at 9.46 a.m. on Thursday, as therein
alleged; nor is he bound to discontinue the
use of the water at the same spot where he com-
meeeed to nse it at six a.m. on the preceding
Thmiaday.
10. He claims thatt subject to the rights of the
plaintiffs nader the agreement " B," he is entitled
to nee the water of the said stream at any spot
that he thinks proper, or at any spot on his
property, including the farms Hoeko and Riet-
fontein, and that he has lawfully done so, as
hereinbefore stated, during and since 1887, and
save as aforesaid, he denies the allegations in
paragraph 10.
11. He denies the allegations in paragraph 11.
aod says that he has not in any way interfered
with or prejudiced the rights of the plaintiffs, or
eanacd them loss, with regard to the user of the
water of the said stream.
Wherefore he prayed that the plaintiffs' claim
be dismissed with costs.
And for a claim in reoonTcntion, the defend-
mai, now plaintiff in reconvention, said :
IsL He craves leave to refer to the matters
aboire pleaded.
13. At divers times between the years 1892
and the present year, and more particularly on
two oorasions in 1892, and in 1895 and 1893, the
defendants in reconvention have trespassed
Qpon defendant's property Weltevreden, and
eertain dams above the dam X have been
wroogfaily and unlawfully broken open by the
defendants in reconvention, and the sluice
destroyed, aod a portion of the vineyard of the
piatntiff in reconvention thereby injured.
li. Owing to the above illegal acts of the
defendants in reconvention, the plaintiff in re-
eonrention has sustained damage in the sum of
£l(XK
The plaintiff in reconvention claimed :
(«) Payment ot the sum of HiOO as damages.
W AHemaiive relief.
. Ic) Costs of suit.
Plaintiffs' replication was general; the plea
to the claim in reconvention was as follows :
1. They ask leave to refer this Honourable
Oourt to the mattors set forth in the declara-
tion.
8. They say they at no time entered upon the
property Weltovreden, save to remove obstruc-
tions in the channel, by which the wator to
which they were lawfully entitled flowed down
to their land ; and they say that in removing
the f aid obstructions, as they had a right to do,
they inflictod no damage upon the plaintiff or
his property.
8. Subject to the above, they deny the
allegations in the said claim in reconvention.
Wherefore they pray that the said claim may
be dismissed with costs.
The defendant's rejoinder and replication in
reconvention were general.
On these pleadings issue was joined.
i<'or the plaintiffs were called :
Carl Johannes Nel, plaintiff, said he owned
portions of the farm Weltovreden, in the Ladi-
smith district. In 1667 there was a deed entered
into between his father and the defendant by
which hib father was to get three days' water
weekly. Afterwards the farm was divided, but
defendant was no party to the division. Plaintiff
got about three hours' wator. Under the agree-
ment the wator was to go to his father at six
o'clock on Monday morning. Af tor the division
this was altored, and it was arranged in 1890
that Barker get the wator first. As a mattor of
fact plaintiff and hid brother took the wator
alternately. Witness began to toke the wator
at a quarter to ton o'clock. Between six o'clock
and ten on Monday morning defendant's son,
John duToit, took the wator. That was the
water which Barker was entitled to. Plaintiff
had lived at his farm since 1861. In his father's
lifetime there were disputes between Nel and
plaintiff's father. On Thursday mornings Bu
Toit took the water at the sluice and sometimes
he took it at the boundary marked 4 on the
plans. Defendant had lands at the mill which
he irrigated. Witness had sometimes turned
the water into the furrow at the mill, and if
the wator was weak it took about twelve hours
to come down. If there were plenty
of wator the time was much less.
Plaintiff could say of his knowledge that his
father brought the mattor to the attention of
the defendant. His father in plaintiff's pre-
sence had complained, and Du Toit on the last
occasion had ordered him off. Du Toit was a
man of violent temper.
By the Chief Justice : He had always to go
up and turn the water on. He had to turn on
the water himself. Defendant did not turn the
204
wftter on. Plaintiff frequently had had to
remove obstructions below the mill which
diverted the water. When last he went to Bu
Toit it was to discuss the water question, and
on saying so to Du Toit, Bu Toit refused to
speak with witness on the subject, and declared
that he would only discuss the question with a
man who was more reasonable. On the follow-
ing Monday, February 17, 1896, the water did
not reach plaintiff^s farm until seven o'clock in
the evening. On the following Thursday de-
fendant turned the water off below the sluice.
Plaintiff claimed for damages £600. In 1895 he
had heavy losses, and in 1896 he lost about
everything. Plaintiff complained further about
the pollution of the water. In 1896, one after-
noon they went to look at the water, and found
a number of pots and saucepans lying in the
stream opposite defendant's house. There was a
servant washing these articles. Later on. he saw
a girl cleaning offal in the stream, and on an-
other occasion he saw women washing clothes
in the furrow. Defendant had a stable about
fifteen feet from the water, and liquids from
the stable found their way to the water. When
he spoke to Du Toit about the poUutioo, Du
Toitsaid to him that he was not worth anything
better, and that plaintiff must not bother him.
Plaintiff was charged with having broken cer-
tain dams. In 1892 he did not break any dam,
but he removed an obstruction. One day
plaintiff went to let the water down, and Du
Toit on seeing them put the plank down at the
sluice. Plaintiff's boys attempted to raise the
piank, Du Toit laying on top of the plank, and
the result was that the plank was broken. Du
Toit then said that plaintiff would have to
suffer for what he had done, and that he would
take everything from him. Later there was
a regular pitched battle between them. Du
Toit appeared with thirty men and plaintiff
turned up with thirty -one. Plaintiff had the
best of it, and kept the water going.
Cross-examined by Mr, Searle : Generally
speaking Du Toit took the water at the sluice.
On many occasions he took the water higher up.
Witness had three different ways by which he
could get water.
The Chief Justice : What is the real ques-
tion ? Is it not that the water must come down
exactly at the time fixed upon, and therefore it
is a question of the construction of the agree-
ment?
Mr. Innes : That is so.
The Chief Justice : If you are entitled lo three
days' water from a certain hour, why should you
not take it at the hour and return it at the
hour?
Plaintiff, in reply to the Chief JuLtice, aaid
that if he got the water at ten o'clock on a
Monday morning he would have the water
turned on at the sluice about a quarter of an
hour before.
By Mr. Searle : Plaintiff had written to Da
Toit on different subjects, but he had not men-
tioned the pollution. Since January last there
had been obstructions in the mill aluit
only one occasion. During 1895 and 1896
he did not complain to Mr. Du Toit The
furrow was not very clean. Du Toit had aaked
him to clean the lower portion of the sloit ;
they had the furrow in common^ and they all
had to clenn it. At the stand-up battle, one of
plaintiff's men put Du Toit in the water. From
the stable to the sluit the di»'tance was 15 feet.
Du Toit had altered the furrow in February last
so that it might now be a little further away.
The last two years water had been very scarce,
and ia 1895 hail did a good deal of destruction.
The commission he got to look at the water waa
composed of friends but they were impartial
people.
By the Cnief Justice: The contract made
between Du Toit and plaintiff's father had not
been altered by any verbal agreement.
Be-examined by Mr. lunes: No steps were
taken against plaintiff after the pitched bnttle
in 1892, and it wus now brought up against him
in reconvention. Witness had never refused to
clean out the sluit
[Before the Hon. Mr. Justice Buohanan and
the Hon. Mr. Justice Maasdorp.]
P. J. Kel, brother of the plaintiff, oorrobora ted
as to the pollution of the water at Da Toit*s
place, and to the late hours when his brother
received the water.
Cross-examined by Mr. Searle : His principal
complaints were that they did not get the water
between the dam and the sluice and on account
of the obstructions. They generally sent men
up to turn on the water. Frequently in 1896 the
water came down late in the day. Witness was
not aware tha^. defendant had frequently asked
his brother to clean the "^rrow. Witeeae waa
present when the sluice was broken. He was
present four Thursdays running. They claimed
the right to the water from the dam. but they
did not get it They had not had the water on
the Thursdays. The dam he referred to was the
X dam ; the dam above it was the Request
dam.
J. J. Nel, son of the plaintiff, said he knew the
furrow in dispute. His father, he knew, was
entitled to the water at a quarter to ten o'clock.
Sometimes he found the water above the mill,
205
Eometimes below it. He went on Mondays
The defendant had been irrigating out of the
furrow, and witness had to remove the obetruc-
iiooft. On Thursday niomiogs at half -past six
tbej lost the water. It to« k sometimeB until
tile following moruing for the water to reach his
other's place. Witness, on one occasion, had
Bftn Du Toit*a servants washing olfa'., clothes,
•nd potR in the water, and he had even seen Du
Toit'sson battling in the same water. Witness
had frequently removed stable manure from
th« water in the furmw.
Cross-examined by Mr. Searle: On his way
to the mill, ii he found any obstruction in the
fsTTOw be removed it. The water from the X
dam eame down at the same time. It wat
turned on on Monday mornings, so that if there
win water there was always some in the sluit.
The stable was about five yards from the furrow.
He did not speak to the Du Toits about that
nanore, for the reason that if anyone went to
them they would not even greet the visitors. He
nw Da Toit*8 servants cleaning olfal in the fur-
row in July of last year.
Be-examined by Mr. Molteno : He had no
trouble in telling when the water arrived at his
iather*s farm.
Johannes April, water-leader, in the employ-
ment of the Nela, said he knew the mill stream.
It was his duty to see that the water came down.
He went on Mondays, and generally found the
water at the mill. There were lands there, and
the people were generally leading the water
then. On Thuredars the Du Toits took the
water alM>ve and below the sluice, and used the
water nntii he brought the water back to the
mill Ue had seen Du Toit's servants dirtying
the water, and he had removed dung from th«
water at the stable.
Cross-examined by Mr. Searle: Witness haa
been water- leader for about two years.
Petms la Grange, formerly in the employment
of the iTlela, corroborated as to the time the
water used to reach l^ers farm, and as to the
obstmctions in the furrow and the pollution of
the water.
Gert B. Biower said he went with others, the
Iifauntiif and his brother, to the mill to see about
the water. The water had just been turned into
the main furrow when he arrived. On another
oeoasion he and Nel went to Du Toit's. Du Toit
laed language towards Nel which witness would
rather not repeat. Witness understood that
what took place between him and Du Toit was
prirate. All that he could remember was that
Da Toit said he could not understand what Nel
wtated. Du Toit, however, insisted that the
•gicement was that Nel should take the water
be'ow the mill. He saw a flat stone and a
plank, and signs of clothes having been washed
in the furrow.
Cross-examined by Mr. Schreiner : At the
time Du Toit used the bad language witness did
not know that the Nels had been breaking down
Du Toit's sluices. He and the others went to
see the water as a commist^ion appointed by
Nel. The stone and the plank he saw. but he
could not say when the washing of clothes in
the furrow took place.
By Mr. Justice Buchanan : He was a member
of the commission. He did not think the Nels
and he were related. Their ancestors might
have all at one time lived in Europe.
Johannes C. Wolfaardt, a member of the
commission, gave corroborative evidence.
Mr. Schreiner : Can the Nels get their three
days' and three nights* water without taking
part oi Du Toit's four days and four nights 7
Witness said he could only reply that the
water muttt be turned on and turned oif at the
one place.
John G. Houlsen, another member of the
oommissiun which went to inspect the furrow
in question, corroborated the previous witnesses
on what tooli place and what they saw on the
occasion of their visits. Witness visited the
place this month. The furrow, he found, had
been < leared out, and a thorn hedge had been
removed. Ihe hedge used to obstruct the
furrow.
Gross-examined by Mr. Schreiner: He was
sure there were marks of soap on the stone in
the furrow and there was Eoapy water there too.
Itaac M. Nel, from Riversdale, brother of the
plaintiff, said that two years ago he scld bis
portion of Weltevreden to P. J. Nel. He
knew about the water supplies since his father's
time. Ud kuew that his father and Du Toit
had frequent discussions about the water. He
remembered that in loU:2 Du Toit's sluice was
damaged. There wai a good deal of trouble
then about the water from dam X. He and
his brother went and told Du Toit tliat they
claimed the water on Thurda}s. Du
Toit said they had no such right
and ordired his men to turn the water
oif higher up. Du Teit refused to
discuss the question. They turued the water on
for the next two Thursdays, but on the next
occasion Du Toit pessed down the sluice plauk.
Witness's brother told his men to lift the sluice,
and it came out of the screw. Du Toit at*
tempted to press it back and broke it.
Cross-examined by Mr. Schreiner : It was not
true that Nel's servants broke Du Toit's sluice,
injured Du Toit, pulled down the wall and
flung the stones into Du Toit's vineyard. Du
206
Toit broke the sluice himselt WitaeBs and hie
brother went to secure the water to which tuey
had a right. Witness and his brother had a
great crowd. What was thrown out was a
bunch of straw with a klip in it that Du Toit
tried to block up the stream with.
Ue-ezamined by Mr. Inne^ : Du Toit drew up
his men beside his vineyard and the Nels drew
up theirs in the furrow.
This dosed the evidence for the plaintiff.
THE DEFENCE.
Sydney Herbert Adley, sui'veyor, Oudt'Shooro,
put in certified plans of the farms in question,
Witntss was at the farms in March last. The
sluit from the dam was fairly broad One dam
alone appeared to be in use. Other dame there
were broken. The Btable used by Du Toit was
forty-four feet from the sluit, but the nearest
portion o^ the e table, which was only used by
gueots, was twenty-six feet from the sluit. On
the occasion of his visit he saw no stable litter
near the sluit. He saw a washhouse forty-four
feet from the sluit, properly constructed, and
with a cement floor. There was no nuisance
from the washhouse on the oooasions of his
visit.
Cross-examined by Mr. Innes : Witness had
only been at the farm three or four times.
Fostia{MtLy 29th).
[Before the Hon. Mr. Justice Buchanan and
Hon. Mr. Justice Maasdobp. ]
P. C. du Toit, the defendant, said he was pro-
prietor of portions of the farm of Weltevreden
and proprietor of part of the estate of Hoeko
and part of the estate of Rietfontein. The
latter belonged to Becker, and he made the pur-
chase in 186r, when he made the agreement
with Mr. J. J. Nel about the water. De-
fendant was seventy years of age and he iirst
lived on Weltevreden in i 869. Before that he lived
on Boeko. In 1848 he began to live on Hoeko.
He went to live in his house near the sluice
shortly after he tuok possession of the farm,
and had lived there ever since. Between 1859
and 1867 he got his wat«r from Weltevreden
dam, or dam X. The furrow wbich leads to the
mill was there in 1848. Until he bought in 1867
the furrow was used on Hoeko and no further.
Until that time it Lad not been extended to
Weltevreden. It was extended so as to join the
furrow from dam X in 1867. The extension was
made in pursuance of an agreement. It joined
the other furrow at the sluice-gate. The sluice
had been there since 1865, but at first the sluice
only took the water from the river. That was
the sluice which was broken in 1892. Witness
had always used the water at any
place he chose. But his custom had been
to begin leading at the sluice on
Thursday morniugs at six o'clock, taking the
water mto a garden. He did not allow his "by-
woneis" below the Mluice to lead water until the
sluice was turned oft. The " by woners " got
water which he supplied'. On one occasion
Holtzhausen turned oil: the water too early, but
witness allowed the water for two hou'*d extra
to make up for that. In lS6d there was litiga-
tion between J. J. Nel and himself regarding
driuk water, and again in i»78 Stl raised an
acdon against him. Ihat litigatiou was about
the water irom dam X. The litigation had notniug
to do with the stream from tue miil. Old Mr. Nel
and he never had aoy dispute about the water
from the mil;. On Hueko and Rietfontein
he aUo irrigated. lu 182^3, 169 , and 1^97
he had done exactly wnat he had done 6iuo«
1867. When his lour days' leading of water was
over, the luirows leading to his lauo^ weie
closed. Old Mr Nel never complained to him
that the stream was oUh true ted ; once HAiai Nel,
sen., complained. Ihe Nels sent someone to
turn on ihe water, and wiioever went to do that
would kee that the obstructions in the niaiA
furrow were removed. Delendautdid not cIaIhi
to alter the position of things as they existed.
In 18U3 an award of aribtration was made by
which the Nels got liberty to lead the water
across the farm and down on the other aide.
The Nels came to him to g- 1 that right, and the
award was mavie. After that time they uaed
water from that point. Most of their water
travelled by that furrow. In 1892 Mr. Sarel Nel
came to his sluice. The Nels claimed the
Thursday's water from dam X. Witness said the
Nels had no right to the water. He and the late
Mr. Nel came to an agreement as to which day
they should have the water, and deftndant was
to have the water on Thursdays. The Nels never
had the water on Thursdays. The Nels came on
four or five Thursdays, and brought rarioua
forces with thejj, sometimes more, sometimes
less. After they had been there once or twice
the Magistrate attended. That was the day the
sluice was broken. It was not true that he bffY>ke
the sluice. Witness had a hole bored in the plank,
so that he could look the sluice. Tho sluice was
locked that morning before six o'clock, but
the Nels and about thirty men appeared,
and by force pulled out the sluice and smaalied
it, and at ihe same time threw witness into the
furrow. They also threw stones into his vine-
yard, doing great damage U> his ripening fruits
Sarel Nel and his water-leader Bteyn went one
day to the Request dam and opened th? dam.
The Nels had no right to that dam. The dam
207
htd been repeatedly cut nearly every week for
the pest tvo yean. The damB above had also
been hrokeo. Whenever defendant's turn for
the water eame these dams were b oken. By the
uk of the Kels witness had eustained great
dusige. He calculated the damage at £1,000,
owisg to lose of crops, damaged sluit, and the
like He was, however, only charging £100
for dsmages. No one had complained to him
iboot the water being polluted. They could
Botmakeench a charge airainBt him, as there
WM not the slightest truth in the allegation.
ItvMDottrae that the manure went into the
furrow sod dammed the water up. It was
equslly uotme that clothes were washed in the
fiiTow. The washing was <*one in the washhouse,
lod the wster from there flowed on to his land.
Weie any of his servants or ''by wooers" to
pollote the water be would send them off at
osee, aod if they did not go, he would give them
1 thnshing. His son who lived on Hoeko
IwOfiht Barker's water, and used it. Witness,
however, did not use it.
CnMs-examined by Mr. Innes : He uped the
viter OQ erf No. 4 on Fridays and Saturdays.
He sever heard of turning any of the Nels out
of bis house. Carl Nel first made a demand for
the mill stream water in January, 1896. That
vu the fiirt lotimation he got that his right to
the wster was disturbed. He, however, did not
thisk the letter worth replying to. Nel was
ilwsyt going about looking for disputes.
WitncflB did not like di^putes. Several
tines he had gone to see that his " by woners " d id
■ot take the water. His people had not used
the wsahhouse since March. They washed in a
plsee nearer the mountain, not in the furrow.
After the ** pitched battle " nothing further was
done. The matter was juet allowed to drop.
Eliie do Toit, wife of the defendant, said no
Mmplsint had been made to her that the water
i> the furrow had been polluted. There was no
**ehiii|( done in the furrow. There was a plank
*fnm the furrow to let people cross. There was
Bows»hiu*;-stone in the furrow. At the time
^ sloice wai> broken her husliand was injured
liythe St'l> p'cesing him against the sluice aod
be vsg all wet. She beard Carl Nel say to the
people to break the sluice.
Croei-exa mined by Mr. Innes : She had given
wden io the servants as to where the washing
■bcqld be done. There had been no washing in
ttefnrrow with her knowledge, and if it had
beeo doae it was against her orders.
E. Juobtrt farmer, deposed that he formerly
Bvvdon the farm Wcltevreden. Mr Du Toit
nt there when witness weiitto live at the place.
WitacsB waa the miller, and he could remember
^ lats Mr, Nel and Mr. Du Toit coming to the
mill at the pale of Becker's estate. The two
afterwards fixed upon a place from which to take
the water. Mr. Du Toit used to take his wat«r
from the sluice. There was no unpleasantness
then. When he first wt ot there the Request
dam was in existence. The dam above the
sluice was also there, as well as the dam above
the mill. These were the three principal dams
then.
Cross-examined by Mr. Innes : In those days
there was practically no cultivation on Hoeko.
The water then was brought to the sluice, and
it was then used on Weltevreden. Ihere was
now a good deal of cultivation on Hoeko.
D. Rieneker, farmer, said his father owned a
portion of Hoeko. Mr. Du Toit was uncle of
witness, and witness lived with him for thir-
teen years. Witness assisted in extending the
furrow from Hoeko. All the time witness was
there the late Mr. Nel took his water at the
mill from Mondays till Thursdays, and Mr. Du
Toit took the water at the sluice. Witness was
away from the place for about eight years, and
when he went back the old arrangement con-
tinued. In February, 1892. he was at the sluice-
breaking. Du Toit*8 hand got hurt and he was
made wet.
Hermanns Steyn, juo.,said he had been in the
employment of the Nels. He corroborated
generally as to the time the water was taken by
the Nels and by Du Toit. He had never seen
obstructions or filth io the sluit. He had by
Nel's instructions cut open the dams. Other
people on NePs instructions had cut open the
same dams.
Pottea cMay Slnt).
The hearing of further evidence for the de-
fence in thiri case was resumed, when Hermanns
Steyn, sen., and V. Balthazar gave corroborative
evidence.
J. J. du Toit, fonof the defendant, raid he
was brought up on Weltevreden, but now lived
on his father's groun 1 at Hoeko. He cor-
roborated generally as to the mode and the time
of using the water.
William Ihomas Barker, fanner, Weltevreden
near the NelH' farm, said he first lived on the
farm in 1877. When he first went to live there
the Nels used the water from six o'clock on
Monday roomings until six o'clock on Thursday
morning, and witness's father-in-law, who
occupit d tie farm I efore him, always turned it
off ou IhurMlays. From the dam X ' e use<l the
water from Sunday at midday until ten o'clock
on Monds) uu rnings. In 890 witness and the
lower proprietors entered into a new agreement,
by which witness's time was from six o'clock
208
until half-pABt ten o'clock on Mondays. Wit*
nesB, however, never had any benefit from the
water, as it did not come down quick enough.
Heinrich John Ciliiers (flocko), a '* by woner "
of Mr. Du Toit, cor oborat-ed generally, and
mainly about the opening of the dams by Steyn.
Thi^' concluded the evidence for the defendant.
Pogtea (Ist June).
Argument on the case was heard.
The Court intimated that it was not necessary
to hear Mr. Innes on the claim in convention.
Mr, Innes, Q.C. : As to the claim in reocmven-
tion, the plaintiffs claim the right to u$>e the
water coming from dam X every Monday.
There was a bona fide dispute, and although the
plaintiffs may not have acted very legally they
did not act in such a way as to create a substan-
tial trespass. In 1853, an agreement had been
entered into between the predecessors of the
parties as to the division of the water. In 1867,
another agreement was entered into. There is
no declaration of rights claimed by defendant
and it is inconvenient to raise the question in
this way. With regard to defendant's user we
will be satisfied with his taking it at any spot
he pleases provided he returns it at the same
spot.
Mr. Bearle, Q.C. : The plaintiffs' claim is four
fold, but the first is the only important one and
it depends on the construction of the contract.
There is no evidence of pollution or obstruction.
By the contract entered into by the owners of
Weltevreden in 1867, Nel is entitled to the free
and undisturbed use of the stream for three full
days. NothiLg is said as to full stream. The
rights of an upper proprietor cannot be taken
away by such words as these. The upper pro-
prietor was then entitled to the b ater for four
days ; the agreement means nothing more than
that the water was to l)e allowed to run past
the mill for three duys. Defendant has done all
he is bound to do under the contract if at six a.m.
on Monday he has allowed the full stream to
run down for plaintiffs' benefit. He does not
put any obstruction in the way. and does not
lead any water bet • een Monday and Thursday.
The water has been used by Hans Nel at the
mill since 186. . If th^re is any doubt as to the
construction of the contract, the user is most
important.
Chief Justice: If it is a registered servitude
only prescription can alter it.
Mr. Searle : As to the claim in reconvention,
we have been in uninterrupted and peaceable
possession of this water for many years. The
circumptances of the trespass should also be
borne in mind in af^sessing damages.
The Chief Justice : This case has taken a
considerable time, and a great deal of evidence
has been taken, but the real questions
in dispute between the parties appear to be very
simple and easy of decision. The first question
arises out of the construction of a contract.
That contract has l)een duly registered, and there
is no question as to knowledge thereof. Both the
defcsdant and the plaintiff have full know-
ledge of the terms of the contract. By that
contract it was agreed that Johannes Nel or his
heirs, administrators, or assigns, should have
the free and undisturbed use of a certain stream
of water for the space of time of three full
days, i.e.^ from Monday at six o'clock until
Thursday at six o'clock in each week. The
terms of this contract are as clear as any con-
tract could be. Now what has the defendant
done 1 He takes the water at a point near to
the plaintiff's boundary when his time of water-
leading begins. When the plaintiff's time of
the water-leading l»egins the defendant lets in the
water, but at a point considerably higher. The
resjlt is undoubtedly that for the full space of
three days the plaintiff does not receive free and
undisturbed use of the water. Now, strictly ac-
cording to the construction of this contract, I
am of opinion that the plaintiff is entitled that
the water should reach him at the appointed
time, and at the appointed time the water may
be taken away at the boundary. Bat the
plaintiff is prepared, according to his declara-
tion, to forego that right because he claims an
alternative, and the alternative claim is this,
that the defendant be compelled to retnm the
full fiow of the said stream at the same spot
at which he takes it. Now, in my opinion the
plaintiff is fully entitled to that relief At all
events. Under the contract he is entitled to the
full stream for three days. I am clearly of
opinion, therefore, that the plaintiff is entitled
to the relief sought for in clause 2, and there
must be an order compelling the defendant to
return a full fiow of the said stream as prayed.
Mr. Searle has argued that that would deprive
the defendant of the water for his full four days,
but there is nothing in the contract to give faim
the water for four days. As to the pollution of
the water, no doubt there has been a certain
amount of pollution of the water, but it appears
not to have 1 een intentional, and there is no
assertion of right on the part of the defendant
to make any pollution, and therefore I do not
see that any good purpose would be served by
granting an interdict. There is no apsertion at
all of a right to pollute the water, and I have no
douiit that the defendant in future will be carefal
not to allow stable refuse to go into the stream.
As to damages, Mr. Searle has laid considerable
stress upon the fact that for a considerable
number of years the use of the water has been in
209
'w^mm^
k^Miirf«it^»a«
the v^ ia wUob tlie defendant says he it
ntitled to. ThAt is ik> resaon for altering the
mrtraetkm of tbe contract^ even if the fall
period o( pccacriptioii baa iMased, Bat the fall
pviod of pieacrip^ioii b«8 not yet paaeed, and the
pUatiiE ia now entitled to have this.oontraot
Quried into efEeci. Bai I do not think that the
ibMJE ia n. w eoiltled to claim any damages.
Itamfftctent for bis purpose that there ahould
bcttnideelsaimtion of fight. Then we oome to
Ok «biim in TeconTention, and it atrikea me that
^ dciendnnt did not attach very great weight
toQm elalmB wMch he now raieea, aeeing that
he has been lying by for several years since
ttn pUlnttff oommitted the main trespass of
which complaint is made. There has been some
smoaement caused by the evidence but for-
tanateiy no injury was done, but at the same
time I think that the Court ought
to make it dearly known that no
peraon ought to take the law into his own hands
in the way in whidi the plaiotiiBE has
done here. Fortunately it did not end
In aerions trouble, but it might have done,
the proper course for the plaintiff to have
to come into court, and not to bring
twen^ or thirty men to assist him in forcibly
earrying into effect what he thought were his
rigbta. Althoogh some years have elapsed, I
think the defendant is entitled to some
dnmaigea, and we are of opinion that jadgment
for £10 will be sufficient. Then comes the more
important question of costSi J certainly think
Utnt the costs of witnesses, who have been called
for tbe purpose of supporting the claim in re-
oonwention, ooght to be paid by the plaintiff,
bnt for the rest all the other costs should be
pniid by the defendant. Judgment will there-
fore be for an order in terms of prayer A2, with
ezeepting the costs of witnesses called to
the claim in reconvention. Then,
■n.to the. daim In reconvention, judgment for
the fief endant for £10 damages, with costs of;
vitnesaea called for the purpose of Jiubstan-
tinting the claim in reconvention.
Their kirdabipa concurred.
[Plnintiff*a Attomeya, Messrs. .Sauer &'
Stnnden ; Defendant's -Attorneys, Messrs. Van
Zyl A BniJBsfnnec^. |
SUPREME COURT-
[Before the Right Hon. Sir Henbt db Vil-
li bbs, K.O.BI.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
PROVISIONAL BOLL.
VAN HBSSDEN V. YAJSt HBEBDBN.
, j 1897.
^' IMaySlst.
Mr. Close made application for provisional
sentence on a promiraory note for £400, with
interest and costs.
Granted.
THB MUTUAL V. CX)BTEBB.
Mr. Jones applied for provisional sentence on
a mortgage bond for £1,200, with interest at the
rate of 6 per cent ; the property specially
hypothecated to be declared executable.
The application was granted.
GO&LINS V. F. H. CLABKK.
Mr. Close applied for provisional sentence on
a promissory note for £60 Is. 6d, with interest
and costs.
The application was granted.
s2
ILLIQUID ROLL.
CAMEBON y. ROOKET.
Mr. McLachlan applied for judgment under
Rule No. 829 .d)on an account of £41 3s. lOd.,
being value of goodssupplied to Captain Bpoi^ey,
master of the Gordon Castle.
Judgment as prayed.
ADMI88IONB.
On the application of Mr. Schreiner, Arthur
Dennison Scanlen was admitted aa attorney
aud notary.
On I he application of Mr. Close, Adriai^n
Jacobus. Murray was admitted as attorney and
notary, the oaths to b,e tak^u before the Reai-
4ent Magistrate of Oudshoorn.
GBNSRAL MOTIONS.
APPLICATION OF J. B. TBUTBB.
Mr. Bochadan asked on behalf of Johanna
B. Truter for leave to sue by ediotal citation
in an action against her husband for divoroe,
910
1^ reaeon of hhi alleged tdaltery, ftlflo for the
custody of the minor children of their marriage,
and a monthly payment for maintenance.
The leave asked for was granted, the citation
to be returnable on Slst August, intendit and
notice of trial to be served with the citation.
IN THE MATrm OF THB MINOB OBBDfl.
Mr. Close applied for authority to the
Master to pay out of money to the
credit of the minor in the Ooardiaas*
Fund certain costs incurre i by Alfred J. C5>le-
man, a connection by mairlaire, on his main-
tenance and education, and for f ntnte payment
for the same purpose, also for authority to ihe
Master to take the necessary steps for the
appointment of a tutor dative in pi toe of the
present tutors, who have tendered their resigna-
tion.
The Court granted an order in t rms of the
Master's report, except that it ordered that the
annual payment should be such amount as is
necessary not exceeding £10^.; the expenditure
to be sn^ect to the Master's approval.
Costs out of the minor's estate.
PBTITION OF A. P. DB VILLIEBS.
Mr. McOregor applied on behalf of Abraham
P. de Yilliers for the attachment ad
ftM%dandam jnrisdietiifiMm of this court
of certain lot of land in the town
of Uitenhage, being Noi I'Of lot 4, the property
of John E. Will, in an action about to be in-
stituted against him by petitioner, by edictal
citation, for the recovery of professional fees and
disbursements.
The application was granted and leave given
to sue by edictal citation, returnable on Ist July.
PBTinON OF CHBOBGB BTU
Mr. Graham applied for a rule nisi
requiring the Green Pomt and Sea Point
Tramway Company to show cause why appli-
cant shall not be admitted to sue in forma
pauperis in an action for the recovery of
damages for personal injuries sustained by him
through the negligence of the company^ ser-
vants in chaise of a tram car.
Leave was granted, the rule to be returnable
onl2thiB0t.
VAN DBB BYL AND OTBBBB T. SCHOLTS.
Mr. Innes, Q.C, "applied fo make abro-
the rule mii Hor mm. interdict restraining
the persoas in po Boca st o n of the proceeds of the
assets of ttie jeint estate of the respondeat and
hisdeeeasedwile,pendtogaii aotieti \tf apfiti-
canls t« set aside ihe will imrportittg to be
exeoated oa 9th JaaiMty, 1987, on th* gnpand
that the same was not executed according to
aw.
Mr. Schreiner. Q.C.« appeared for the re-
B 0o a d eai bat did act oppose the moilpo.
The applie att oa was graaled by eoaasatf the
iateitllot to eoathiae poadhig aa actloatoito
brottghi ia the Augast term, aad thecostotobe
costo in the cause.
psrmcnr ov mabt BBBMsraiN.
Mr. Bearle, Q.O., on beh«lf t4 Mary Bemsteiu,
asked for leave to sue in /Wmtf pmuperit in An
aotioa agatiwt the trustee of the fnsolvaai
estate of her hmAMmd for the rw a ftirf of csfrlain
goods, chattels, and persoaal effects a tta e h ed
by him as the property of the said estate
but claimed by petittoaer.
The rule nisi was granted.
PAABL riBK AflSUBANCB AND T^Jjm COUPAJXW*
Mr. laaes, Q.C., asked ior An order plaoinKtlie
said company in liquidation under the OoBi-
panies Act of 1808, and appointiag an offieisl
liquidator therete with the necessary powsna,
and approving of Vincent A. van der Byl as
attorney to each liquidator.
The order was granted.
THB UNION BANK.
Mr. Inaes, Q.C., applied for the aaao-
tion of the Court to the compromise pro-
posed to be effected by ttie official liquMlatoia
with the Rev. Hendrik B. Faure, a contrilmttM'
in respect of sixty-six shares in the said bank. .
The application was granted.
BLDBB'a BXBGUTOBS V. OOIHBAD. | Ma^y^ist
Ejectment — Motion — Facts in dispute.
Ejectment will not ,(BU a rule be
decreed oh motioM especialijf where
faeU are in dispmte.
This was an application on. aotioa oaUisg
upon the respondeat to show cause why he
should not be ordered to remove from the hooae
and premises situate at Newlands,kn6ill|a8 the
Bricklayers' Arms Hotel, occupied by him, aad
to deliver up the. licence relating thereto, duly
endorsed, t6 the appltcntr on the groond that
he had contravened the provisions of the agree-
ment under which he held the premises, first in
not regularly paying the rent, and secondlf^ in
not properly condncting th^ w*«#»
[
211
Mr. OfsluMa lur tba i^iplloi^te : Ai to wht^bvt
qMtei«Dt can be ordmd on motion, bm /W-
fi€ter T. OUvier (6 Shell i>. 814), where the Govt
nid thai it WM poMlble to niftke raob bb order
iBextieme OBiee.
This It mn extreme cbm. The rent for three
vp to April WB8 In BrreBr. There wbi
Ifr. BMhABBB for the reepoBdent.
The Cooii refoeed the applieBtloB with eoeti.
The Atfttof Ohtof Jnittoe SBid: Thto ie bb
ipfHeBtioii BB motioB lor the ejectment of
mpc B deBi ob two grounds : firtt, thBt the rent
heenot been MgnlBrlj pBld, and leeondly, tl^nt
thire bBB been b brsBch of the covenant of the
keeft ae to the eoadnet of the hotel. It was
poleted iNit Ib the caee of Olivier ▼. Poigleier
(« Sbeit 812), that it Is not nraal to frant ejeet-
meat on motloB ; hat It was also said that theM
Might be oases In which the Oovrt might depart
from tuoh practice. I think In order to Induce
the Coort to laj down a new practice there
oaght to 1)0 BO facts In dispute. This Is cer-
tidaly not snch a case. In this case the lespon-
dcat satd that it was his custom to pay reat at
Us 'coBTCBieace, and It was always accepted.
Tlie breach of covenant as to the keepiag the
Mel properly is disputed, aad this Is a matter
impossible to dedde without going Into evideBoe.
There Is also the singular fbct that Immedfaitely
ea the last month's rent beeoming due, tihe
tppli^ant sued the respoBdeat la the Court of
the Resldeat Mug^trate for the moath'srent,
sad for ^rrears. No arrears were due and
leppondeipt teadered the moBth% reat, whieh
wBs accepted, and the actloB ftfr ejectment 'was
withdrawn. Under theee clrcumstBBcee the
spfiMeBtlon will be refwad with easts.
MITCHBLL'a BXB0I7TBIZ Y. BBOIB-
1897.
nUB OF DBBNI. KISO WILLIAM'B { xr.. «i„a
Minors — TmmoTable property — Sal<
Cciiiscut of Court— ^Ms de bdHtn —
l^iblic officer.
M. amd her kusband on ik§ Ut Sep'
timber f 1880, executed ajoiM will m
ierme of wkick Mtf ehildrem of the
marraige were appointed eole and
univereal heirs.
The will then went on to provide that
the survivor ehould be allowed to
• heep the whole of the joint eekUe under
hie or her sole and entire direction
and mdnrinisiraiiont and to remain in
fnll and undistHr&ed possession «
thereof t and in the enjojfment of the
HBufmet of the estate Jor his or her
natural Iffe, provided however that
in the event of the testatrix being the
survivor and remarrying^ she, as
executrix, should realise the entire
estate and invest the proceeds in
landed property in the Colony, the
interest to be paid to her during her
natural life. The testator died on
the 7th May, 1882, and on the 12M
December following letters of admi^
nistrntion were granted to M.
Thereafter M., before all the heirs
had reached wm^orityy sought to sell
certain land farming part of the estate
to whieh she had waived her life
interest, but the Registrar of Deeds
refused to pass transfer,
M. then applied to the Court for an
order eompelliiig the Registrar to
pass transfer and claimed costs de
bonis propriis against that officer.
The Court referred the matter to the
Matter for report as to whether the
proposed sale was for the benefit of
the minors and ordered the applic€mt
to pay any costs which had been in-
curred by the lifgtstrar of Deeds,
This wss an application on notice by
Catherine Mitchell, io her capacity asezecutriz
testamentary of the estate « f her husband, the
late George Mitchell, of Bast LoDdon, calling
upon the respondent to show cause why an
order should not be issued by the Court, oom-
pelln * him to forthwith pass and register in
the name of Robert F. L. Boss a deed of trans-
fer tendered to him for registration
by Josias Howard, of King William'^
Town, the duly' authorised agent and
conveyaacer of the applicant, and also why he
should not be ordered to pay the costs of the
application de bonis propriis. The notice of
motion was supported by the aflldaTitof Mr.
Howard, who deposed ttiat he was the duly
appointed inr^nt of the applicant, for the pur-
pose of efiectlng the t ansfer of the property
mentioned in the deed of transfer BBaezed.
That actiag as such agent he duly teadered
the said traosfer for registratlOB at the ottee of
the rsspoadeat. That the respoBdent refussd to
accept and register the transfer ob the gionads
.^ d
218
that the applicant had no right or authority to
sell the property therein mentioned without an
order of Oourt.
That with the deed of transfer he also ex-
hibited to the officer in charge of the office, as
is the custom and practice in the oon\eyaQce of
landed property, the following documents:
(a) Original letters of administration in
favour of the applicant, dat^ 12th December,
1882.
(b) Power of attorney granted to him by the
applicant on the 13th April, 1897.
(j) Transfer duty receipt.
{d) A certified copy of the death notice of
George Mitchell.
(#) A certified copy of the joint will of the
applicant and her husband, Qeor^e Mitchell.
(f) Deed of transfer in favour of George
Mitchell.
(y) Notarial deed executed by the applicant
That he duly pointed out to the officer in charge
of the office that there was no special bequest
of the landed property mentioned in the will,
and therefore no order of the Court was neces-
sary.
That he had suggested to the said officer that
a reference should be made to the Ijaw Depart-
ment for guidance and advice, and that he had
not been told that this had been done, but the
deed of transfer was rejected. The applicant
and her husband on the 1st September, 188(>,
executed a joint, will in terms- of which the
children of the marriage were appointed sole
and universal heirs.
The will tl^en went on to provide that the sur-
vivor should be allowed to lieep the whole of
the joint estate qnder his or her sole and entire
direction and administration, and to remain in
full and undisturbed possession thereof, and in
the enjoyment ot the usufruct of the estate for
his or her natural life, provided however that in
the eveni>of^he. testatrix being the survivor and
remarrying, she, as executrix, should realise the
entire estate and invest the proceeds in landed
property in the Gplony, the interest to be paid
to her during her natural life. The testator
died on the 7th May, 1882, and on the l?th
December following letters of administration
were grai^ted the applicant.
The Registrar of Deeds refused to pass. trans-
fer of the property which formed part Qt the
estate, on the following grounds :
(a) That the applicant did not eontemplate a
remarriage, but diiesired to sell one of the immov-
able properties of the estate, to which she had
waived her life interest.
(I) That there were minors conceraed in the
estate.
(«) That it was not shown that the money *
was required for the education or ma'ntebance
of the minors, nor that it was for the benefit of *
the heirs that the property should b« sold.
Under these circumstances the exeoatrjix
should apply to the Court f<w leave to sell the
property. j
Mr. Graham in support of the applicati<m-:
The question is, whether the proposed tranafer
contravenes the provisions of the will 7 There '
is no prohibition against alienation. It has
always been the practice to allow transfers of
this nature without applying to the Court.
Mr. Shell for the respondent : It is submitted
that the Registrar of Deeds was justified ^ in
'declining to allow transfer of this property to
pass without an order of Court. The applicant
as survivor is given the administration of the
estate, to the usufruct of which she is entitled,
but no power of sale is given her under the will
except in the case of remarriage. It is true
that she renounced her life interest, but minora
are interested, and it is npt alleged in this cmsa '
as it was in Brown't {t Juta, 237), that the
proceeds of , the sale are required for the main-
< tenanpe and education of the minors, nor ia it
alleged that the sale is a profitiibl^ one for the
estate or that the heirswill benefit by it, nor is
any security offered that the money wiU,t»e
preserved to the heirs. Under such circum-
.stances the Registrar of Deeds was amply
justified in refusing to pass transfer without an ^
order of Court.
The Chief Juslioe : Why were costs, de &a»ia
! propriU claimed against the respondent ?
Mr. Graham : He was.callcd upon to pay costs
■in accordance with the practice in similar
• applications.
' The Chief Justice : Costs should not bctflaimed
. against a Government official whe is endeaTour-
' ing to do his duty unless mala fides can be proved
; against him. The applicant has only a life
estate, and as she has renoanced that the pro-
> perty has fully vested in the children, bat the
Court should be satisfied that it is. to the
interests of the minors that tl\e property, the
subject of the present application, should be
sold. The nresent petition will lie referred to
the Master for report as to whether the sale is for
the benefit of the minors, and the costs which
have been incurred by the Registrar of Deeds
must be paid by the applicant.
Appltcant*s Att«Nrneys, Messrs. FindJay tc Tait,
Reepondeut's Attorneys, Messrs. Reid k Nephew.
218
V.
I
1897.
Biajr SUi.
June lit.
Faichtse and sale — Sviciioti — Sale by
non-owner — ^Fraud — Price.
'i*ke tide of a thing not belonging to
Okt vendor tj not illegal if made bona
Me, \nX it tubjecl to the buyer's right
to he indemnified against eviction.
Where such a vendof has given free
emd undistnred possession of the thing \
sold — and the purchaser has.^ot
claimed an indemnity, cMd'thm:cir'
emmstances of the sAle teerekneh as
to debar the owner from recovering
the thing or its value from the pur^
Held, that the vendor is entitled to
recover the price fom the purchaser.
This vat an appeal from n decielon of the
H^gh OoQfi, Qriqnaland Weet, on nn appeal from
a jadcmant of the Reeident M ajpletrate, Vry*
In the original laii before the Reaident
M agietrate, the plaint iifs John Jurgens Therun
and Qeoripe Goenraad du Plenie tnmmoned
GoraellQB Jan Hermanu« Schoombie, a far-
mar, realding at WolvedabB, in the dietriet of
Yrjhmgt to show why he had not paid to the
plninliHe the som of £64 IQi. (fifty-four pounds
and ten BhillinKB) with interest a tempore merte,
tar and being the purehase price of eertaia
aaltle sold and delivered by plaintiffs to defen*
danta on the 13th day af October, 1896^ that is
to any:
a yoang oxen at 9^ each £12
4eoin at40s.eaeh 8
Sheifen atSOiLeaeh 4 lO
lOoxen at £S each 80
■taking the aforesaid sum of ... £64 10
The defemlant's plea was as follows :
ComellB Jan Hermanns Schoombie, the aboTe-
■amed defendant, comes into court by his
atlonaeya, If inching Bonnenberg, and as a plea
1. That the alleged sale of the said cattle by
the plaintilFs to the said defendant, if it has
been made and entered into (bat which the said
defendant deaies), is illegal and not binding
apon defendant, for the reason that the said
plaintifb were not the owners of the said cattle
at tiia time the alleged sale is stated to have
taken place, nor were they the duly authorised
efsni. of the owner or owners of the said cattle
with special power to sell same, .
: 2. That, even if it be held that the said
plaintifEs were entitled and authorised to sell
the said cattle, they are, however, not competent
to brinit this aotioo without having first obtaiped
from the owner or owners of the said cattle
ceasion d action therein*
3» That, if the alleged sale was made and
enteiad into (but whioh defendant denies), the
•same was subsequently cancelled and aaaulled.
Plaintirs attorney objected to the spcselal
plea on the ground that
■ 1. Paragraphs I and 2 are null and insuffioient,
on the grounds that the several allegaUons there-
in contained do not in law amount to. a defence
against the action brought by plaintifEs.
2. That the pleas are null, being vague, incon-
sistent, argumentative, and embarrassing.
Overruled.
Plaintifb* attorneys then joined iss^e.
The following evidence was called lor the
plaintiiZs :
George Coenraad du Plessis : I am one of the
plaintifEs in this case. I and John Theron sold
some cattle to defendant. We were jointly in
the transaction. The prices were
8 young oxen at SOs. each ... £12
4 cows 40s. H — 8
5 heifers 8(*s. „ ... 4 10
10 oxen 6rs. „ ... ^80 i/
26 • £64 10
The sale was on the 18th October last. We de-
livered these cattle to defenaant, who received
them. He has never returned tbemrtnor has he •
paid the purchase price.
Oross-examined : We went to Mr. Behoombie>
house, and told him that Qovemmect had given
up shooting, and that there were certain cattle
in the kraal, and that they weroeither to be shot
or the owners had to take them back. We told
him there were twenty -six head, and that four-
teen Ulonged to Strydom and twelve to Rau-
benheimer. We told him he could have the
cattle if he paid compensation money for them.
We were not at all anxious, and did not press
him to take them. From the house we went to
the kraal, and there we told Schoombie he coula
have the twenty-six at compensation prices.
There were more than twenty -six head of cattle
in the kraal. I made a mistake just now. I
told Schoombie at the house that there were
twenty-six head of cattle belonging to Strydom,
at the house, which he could have at compenaa-
tion prices. I told him at the kraaU he could
drive out twenty -six of the cattle in the kraal.
There were other people's cattle in the kraal
under Mr. ^ubenheimer's care. Schoombie
drove out twenty -six head of cattle. Schoombie,
I think, asked Theron whether they were all
814
SlrT^m'B. I am not quite lore none of the
ctfitfe dHVenout belonged to Geneham ; not that
I know of. About an bonr afterwardB Tberon
and I went over to Schoombie with Mr. Ravben-
hefmer, who said we might get into trouble for
•ellinir to Schoombie. All the cattle in the kraal
were' to have been ihot that morning. I was
assfstiog Mr. Theron in his dntj as Field-cornet.
I had no authoritj at that time from Bt ydom,
the cwner, to sell these oattle. The Government
instructions were that if the owners did not
tak^'them back the cattle were to be shot. Gov*
einment had already taken over these cattle.
When we got to Bchoomble's I said to him:
** Tou had better bring tbepe cattle back, and
let them be shot at once." He would not agree
to this. He said : '* I have bought the cattle,
and if Government can buy I can." I am posi-
tive that I did not suggest ihat Theron and
Schoombie should go into town and get Mr.
Schoombie to consent to the sale. I will pay so
if Schoombie says I did suggest it About a
month after this I came to Mr. Schoombie. I
did not ask him for a declaration from Mrp.
Strydom that she had not sold him the cattle.
I asked him for f declaration that Mrs. Strydom
had given him the cattle to treat. I did this
because he said she gave it. He gave me the
declaration. I have not got it now. I may have
it. I took no notice of it. Schoombie told me
that Tlieron said he made him a preFent of the
cattle the day I got the declaration. The reason
w*e did not bring the action before was because
I thonght he would change his mind and pay.
We sue now because we sold the cattle to him.
We have paid the owners for the cattle. The
twelve we paid a long time ago, and the fourteen
lately. I do not know what has lieoome of the
othei' beasts. I know we sold twenty-six.
Govemmf-nt paid Mr. Raubenheimer for his
twelve. He claimed for them by mistuke. I
have received no cession of action from Strydom.
He wanted tc sue me if I did not pay. I do not
know what has become of these cattle. They
may have died of rinderpest. Several persons
we^ present when the original conversation
took place. There was not a native boy with
Coffee there.
Re-examined: It was twenty-six head of
ctttle w^ sold. We claimed for twenty -six. I
do not know how it is the claim is only twenty-
five in the summons. Twenty-six were driven
ou]^ but ' af t^rw«rds ycung Strydom said he
would not let his cow be sold. He had one,
nnd took It away. When Schoombie purchased
the tattle' he knew that twelve belonged to
Raubenheimer atd thirteen to Strydom.
Strydom 's cattle were under charge of Rauben-
biliner. He cume up atid said, ** I do not mind
about mine, but Strydom might object, bacauae
they mighi recover and he might claim the
cattle." I paid Raubenheimer for these cattle,
or rather I paid Government on behalf of
Raubenheimer, as the money had been paid in
error. The money was actually paid by Theron
on our joint account. Ko transaction that 1
know of took place between Schoombie and
Raubenheimber and Strydom. The transaction
was entirely between us. We were the duly
responsible parties. The declaration was given
by Schoombie, so that I need not pay Strydom
for his cattle, Schoombie told him sa This
was when I took the account ind asked for
payment. Schoombie then told me Mrs.
Stiydom repudiated the sale, and had given the
oattle to him to take care of. This was the
first intimation I had that he repudiated the
sale. He refused then to pay for Raubenheimer
also. This was after the cattle had died. He
never offered to give the cattle back while they
were alive. I think two or three of the cattle
were salted. He never offered tboM that were
salted. Defendant professed that he could save
cattle from dying of rinderpest ; he gave t|i)a
out.
By the Court : The kraal in which the oattle
were is Yryeboom Ylaiikte. Mr. Schoombie
lives on the same farm. Mr Theron was there
in his official capacity as Field-comtt. I waa
there assisting him as such. I hold an appoint-
ment ae J. P. Mr. Theron and I were at the
time both engaged by Government for taking
measures for the prevention of the spreid of
rinderpest. Mr. Theron *s police were going to
shoot the cattle. He had instructions to shoot
the cattle. I did not see the inbtrnctiops. The
instructions were that the cattle were to be
shot unless they were claimed by the ownera.
They were given by the Rindetpest Conunia*
sioner. Mr. Theron and I simply took the
leaponsibility on ourselvfs. We were thinking
we were doing a good thing. I admit we had
no right. We thought we should help
Schoombie and help Government. I waa enre
the owners would not object to it. We had
absolutely no right at the time to sell the
cattle. Shortly afterwards Mr. Raubenheimer
came and did not object to the sale. He never
in any «ay made over his right to the cattle to
us. nor has Mr. Strydom. Mr. Strydom and
Raalienheimer have received their money^.
Mr. Schoombie was to pay the money to na,
and we were the responsible persons to the
owners. We were not to get any profit out nf
it. Mr. Raubenheimer was on the same farm.
We were not actiug in the interests of the
owners, but in the interests 6f Mr. Schoombie
and Qovernmentt
^15
Jokui JwgeiiBTlMKm •iated: I tm odd of the
pltiiiUEB in this aetioo. I am now olaiming
bwk defendani ilio •um of iM, as itated in
wmaona. This property, was sold by os to
delwfciiani. He reoeived delivery, but has not
9iid the pmebiwe price up to date. The amount
■tmifimaVna due,
Crwe-exeniiiied: The traDsactlon took place
on or about 18tb ioat. I did not go to 8choombie*B
bapn with the last witness "before the sale.
When I, arrived, last witness and Schoombie
ave at the krmal. I received a telegram from
the EiBderpaat Commissioner stating that no
man sLaoi^terinR was ta take place unless the
earners wished it Tbe cattle in the kraal had
been taken over by the Government some time
before. I will uot swear I was not at Scboombie*s
honae. I eaiuiot remember I was. Schoombie
said, now the people's cattle are not to be shot,
they had so, advantage, over him. as his cattle
had been shot^ and he was willing to take over
twenty-six head of cattle and pay the full
amoont Government gave for compensation.
We agreed, "the cattle were in charge of Hr.
Beubenheimer before Government took them
o>ver. I knew the owners of the cattle, not the
eettle. I gave a certificate to M r. Baubenhelmer
thai so many cattle were shot; not to each
iadtvidual owner. I told Schoombie he eonld
hare twenty-six if he paid the Government value
areompensation. I had no authority whatsoever
firom either tbe Government or the owners to
seD the catUe. I did it on my own responsibility.
I am certain it was Hr. Schoombie approached
BM first. I said nothing about the owners. I
merely said he could take twenty -six out of the
kraaL I found out afterwards the cattle be*
longed to Mr. Baubenheimer, Mr. Stiydom, and
hia fOD. I am not aware that any belonged to
Mr. Tliieliam. Mr. Raubenheimer came over
afterwards, and seemed lo think what had been
dene was not correct. He caid the owners could
efarin the cattle if they were salted, fie was not
aevety strong on the matter. He did not point
ent to me that 1 might get myself into trouble.
He may have done so to Mr. Du Plessis. I never
mtkad defendant to cancel the sale. No one that
I beard of asked him to do so. Mr. Bolioenihie
Baabenheimer suggested that Schoombie
I should eoaie to Vryburg and see whethc
it was Strydom's iateotion to take the cattle and
treat them himself. We eame in and found Mr.
84rjdeus was away, I did not try hard to per-
Mis. Strydom to agree to the sale. She
not surprised to hear thi^ the cattle had not
I did not tell her defendant had
tweaty-six head of cattle belonging to
husband. Mr. Sehoomble asked Mrs. Stry-
dooi if she would consent to the sale. Slie said
she had nothing to do with it ; that Mr. Stqpdvm
was not at home. Mis. Stiydom seat for her
sfin. One of the cattle belonged to him* Mr,
Schoombie asked him if he would ceased to the
sale. He refused. I took no part ia the con-
versation. Mr. Strydom and Raubenheiaier have
given me no cession of actioo.
Re-examiaed : These cattle had been beaded
to me to be dealt with under the fiiniderpsst
Regulations, under ProolamatioB 810. Subse-
quently I got instructions that the owners coilld
doctor the ca 
