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Full text of ""Cape Times" Law Reports: A Record of Every Matter Disposed of in the Supreme Court, During the ..."

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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 
&ltdi 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 



II 

■1 

m 
e 

I 

I 

« 
I 
\ 



M 




^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. 



n 






i 

ii 

I 

"I 
I 

« 

•I 

^ 
I 

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- 
tra