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L/vPi
Reports op all cases
DECIDRn
IN THE SUPREME
OK THE
CAPE OF GOOD HOPE,
DURING THE YEAR 1897
(WITH TABLE OF CASES AND DIGEST).
, RfcPOBTKD BY
J. D. SHEIL,
OK THK INNKK TBMPLE, BARRIHTBR-AT-LAW, ADVOOATB OF THB BUPRBMB
COURT, AKD ASSISTANT LAW ADVISER TO THB CROWN,
VOL. VII.
CAPE TOWN :
PKINTBD AMI> rUISLlSHBD AT THE *«JXikJ«4:iMBS" OFFICE, ST. OBORGBS STRBBT.
1898
JUDGES OF THE SUPREME COURT DURING THE YEAR
1897.
Thb Right Honourable Sie J. II. de VILLIERS, P.C.. K.C.M.G. (Chief Justice).
Hon. Mr. Justice BUCHANAN (Acting Chief Justice front 1st June to 31st Oct.).
Hon, Me. Justice MAASDORP.
Hon. Me. Justice SOLO.MON (Sat during the August Term).
A ttomey- General,
Hon. Sib THOMAS UPINGTON, Q.C., K.C.M.G.
• r . -
k
♦TABLE OF CASES.
PAOB
ii^Uex parte 116
Alnh'tms T. Abrahams 122
AdMmLgn^, ex parte 310
Adams t. Gtpe Colonisation Co. ... 121
Aitehison T. Aitchlson 20
AlbertjD, ex parte 122
AUbrd, Wills & Co. T. Bosman 121
Albg T. BbbuSy o/uu Mabioi 343
Aliwi] North Board of Executors, r« 118, 200
AUeo T. Tompkins ... 503
ADeDxeniky y. Gaeriner's Executors 186, 230
T. Pidc ••• ••• ••• l85
Anjott T. Amyott and Garrett ... 375
Arnold's Estate, r« 260
AMnnhutk, ex parte 377
Ashptd, ex parte 95
Attwell,re 3799 389,422
Attwdl A Co. T. Pnrcell, Yallop &
Ererett 408
Asstio T. Hausmann ».. 229
AveQant ^minors), re 329
BIT. Ragiem SSOO
Bitrtfflao T. Colonial Government ... 310
Bwhmeseb, re ... ... 42
Bukj?. Anther... 398
Bsilqr T. Bailey 96
BskeTj ex parte 185, 230
), (minor), rs ... 328
p , & Co. y. De Yilliers 62
Baker's EeUte, re ^ 319
Btk,exparte ... 130
Bam T. Bobotse ... 323
„ y. Robertson ... ... ..•• 95
« Pros. y. Perkins ... 148
Bank of Afiica y. Bennett and Others 82
BamJiall y. Barraball ^. ... 168
Barker y. Barker.. ... 114
Bartbplameic'fl EstiUe, re 394
„ . y.Sublefi»rd ... 14, 117
9moo, ex ptfrte ... 122
„ . y. Vnn Zyl, ,., ... •.. 38
Bnipaonft Po. y.Qillie**. •«• .;. 122
hoABT, ex parte v% < ... 122
&7ii9*s Totpr y. Tliompson Aod^nQther 380
PAGE
Beedle & Co. (in liquidation), re 19, 62
Begley y. Denton & Thomas 368
Behr y. Harmao 19
„ and Others v. Van der Westhuizen^s
Estate and Others 389
Beiles y. Beiles 315, 477
Bein, ex parte 389
Bekker y. Van Heerden 416
Bell v. Bell 149, 186, 231
Benuing's Estate, re 433
Berg*s Estate, re 503
Bernstein y. Bernstein 210
„ y. Bernstein's Trustee ... 169
„ y. Calling 121
BeeteTj ex parte 185
Bettelheim y. Williams .. 186
Beukman, fxj^arfo 230
Beyer y. Beyer 128
,, y> w lese *.. ... ... .. *fo
Black y. Lawrence 440
Blackburn y. Mitchell ... 328, 362, 379
Blaney exparte 121
Bloem y. Zietsman 402
Board of Executors y. Heyns 377
„ „ y. Oosthuizen ... 277
Bodkin y. Uoskins 120
Boeberg y. Boeberg 374
Booy , ex parte Annetje 475
Bosipan & Co. v. Armstrong 309
fiosman's Trustees y. Bosman 323
Botha*s Executors y. Du Plooy .... 429
Bougard y. Jones's Executors and the
Al.a6ter ... ... ••• .•• Zo*/
Brodie y. Cape Colonisation Co. ... 272
Brooks v. Brooks ... 20, 117, 392
Brummer & Co. v. Vogel 474
Bruanette, ex parte '. 118
Buchanan (minor), re ... 288
Buissinn^ y. Victor 383
'BvXXeTiy ex parte ... .... ... ... 343
Bcirdack v. Burdack .... 12
^ l*am muck indebted toHr. HowsL JOKBB of
the Supreme -Court Bar, who has reported the
kiajocUy of the oaeen since the beginning of the
Vijpgii^t Term.7^.D.8.
11
TABLE OP GASES.
•••
•••
Burton y, Knight
Butler, ex parte
Byl, ex parte ... ••» •••
„ V. S. P. A G. P. Tnunway Co.
PAOB
... 167
... 272
... 210
... 230
Cairncrois v. Korkie ... 393
ff V. Oudtshoorn Municipality 286
Cameron, exparte 83
„ V. Rooney ... ••• ••• 209
Campion y. Campion ... 395
Cane v. Anret 384
Cape Colonisation Co., re 128, 274, 320, 380
Cape Commercial Bank (in liquida-
tion), re 379, 386, 603
Cape Divisional Council v. Langford ... 166
Cape Town Town Council y. Falconer 384
leaner, re ... ... •.• ..« ...llo
„ T. Aliwal North Municipality ••• 491
Castagnino v. Castagnino 294
Celliers St Co. v. Bazier 121
ChEpaoiXif ex parte 230
Chivell and Others y, Carlyon and
Others 67, 83
daremont Sanatorium t. Claremont
Municipality 281
Cleghom and Others y. Smith ... 83, 117
Cloete, ex jMuie 116
Ooettee, ex parte 377
Cohen v. Le Du 121
Collins V. Clarke 186, 209
Colonial GkiTernment y. Belle 476
V. Cook Brothers 2
T. Elliott ... 502
y. Oertenbach's
Executor ... ... ... ... 60
Colonial Government v. Noltzykop Gold
Mining Company 2
Colonial Government v. Btpbael ... 389
„ I, V. RoBsell ... 422
„ „ V. Van der Walt 603
9, 9, V. Van Rensburg 1^9
„ ,1 V. Visagie & others 169
Colonial Orphan Chamber v. Hunter ... 1
Combrinck & Co. v. " Gordon Castle ** ... 129
„ „ V. Pescod 122
Commaille (minor), re 386
Consistory D.R. Church, Cape Town,
Petition of ••• ••• ... «•• 4
Cook V. Walker & Co 384
»»
J>
9t
II
»
II
PAOI
Co-operative Baking Co., re ...66, 122, 14S
Copeland, ex /9arfe 970
Comwell, re ••• 117
Cotterell v. Snyman 277
Courtis's Executors, ex ^Mirte ••• ••• 286
v/OX, f*e ••• ... ... ... •.» 9o
Cressy v. Van der Merwe 283
Crossley and Wifis, ex jMirfe 962
Cruywagen v. Gird 52, 67, 145
Cunningham v. ^ Gordon Castle" ... 129
Currey, exparte • ... 916
Cnrriet ex /Mirfo, Sir Donald 477
Curtis, ex j»arte 116
Customs, ex parte The Principal Officer
oz ... ... ... ... ••. vy4
Davis V. Madhlivs ;•• 601
DaviFon Brothers v. Colonial Covemment 284
9f n V. Joubert
Dean v. Webner A Co. ...
De Klerk, ex parte T. C.
De Klerk, ex parte P. P.
De Klerk V. Niehaus
De Lange and Others, re
Delponte v< Delponte
,9 V. Delponte and Da Preex «.. 474
De Marillac V. Bruyns 180,311
., V. Reiohelman and Others 503
«••
... 121
328,388
... 130
66, 117
... 160
Denton St Thomas v. Begley ...
De veling, ex parte
De y illier^i, ex parte D. J.
ex parte J. J. ...
ex parte A. P.
ex p€trte D. P.
(minor), re
V. Burgers ••• ...
V. Urease •'.. ...
V. Stiglingh*8 Executor
De Waal, emparte-D,
,, exparte J. H. H.
...
...
.••
... v98
... 2
... 19
... 122
... 210
... 277
... 818
... 61
... 230
... 412
... m
... 877
... 120
De Wet, re
Dibben v. Cape Divisional Council 394, 447
Divisional Council of Stellenbosch v.
Myburgh 271'
Dodd's Insolvent Estate, re
Doll, re ... .*» ...
Doni Zozo, ex parte
Dornbrack, exparte
Drake, ex pttrte ...
Dramat v. Gamar
...
•••
«..
•..
...
*.•
TABLE OF CASKS.
•• •
lU
Db FIcmv, ex parte^ P. J» A« •#•
at tx parte J. Q. H. 8.
jt Estate, re
I>i Pk«ei T. Jaan
•••
PAOI
... 128
... 327
... 20
... 167
D^secaa r. De Beer 272
n A Co. T. Periot 50l
IHOck Befoimed dmrch, Ctpe Town» re 4
» 9, 9, Dordrecht, e:r
P^^ 231,271
Ik Toit, ear jMirte 2aO
„ (iiiiiioTB)»ex/Mrr<e ... ... 274
n T. CSlIiers 34^
•i T. Domingo 134
If '• -Wei ••• «•* ••• ,,, o27
9 T. Kolte 454
Pjw k Dyer t. Alexander 421
Ellon, Robins A Co. y. Taylor ...
Mmeades' InsolTont Estate, re
KUer't EzeciitorB y. Coxhead ...
Ittiott y. Bodk ...
EUnan, ex parte
Sfiot, ex /wf le
... 283
... 149
210, 286
... 384
... 502
... 501
Faoie y. CiUie
Fiuue y. Fanre ...
FOfti Samai, tx parte
Kdier y. Cutler ...
Hather, £B jMiHe —
flagg y. Fl^gg & Hason...
yictcfaer A Co. y. Short ...
.. .
...
...
...
...
...
...
... 271
... 503
... 310
... 501
... 2
... 172
... 160
Fottof and Another y. Pinker 277
„ and MacFarlane y. Pinker ... 323
Forreit ACo. y.May&Co 95
t, y. Stagier 59
Forth y. Gmnewald 279
F(Mtiiin*B Eatate, re 475
» Exeentors y. i^braham ... 80
^ Troatee y. Baatard Fortnin 384, 501
„ ,, y. Breonan ... ... 384
», y9 y. R«alooD 393
Foeriey ear ^Mir/e m. ... ... ... 8
Foerie y. R.M. of Worcester and
Thacker 62
Fox T. Walker 9l Sods 475
FaoKioft (minon), re 809
fhudken'a Kzeentovs, ex parte 898
PAoa
Pranzen, ei/wrte 280
Free State ProtipectiDg Syndicate y.
Minmaar 200
Friedman, ex psWe 267
Qaertner's Estate, re 160
Gardiner, ex /Mirfo 121
Garlick y. Broido 149
„ y. Gibson 122, 126
Gayin y. Mnuicipality of Oudtshoorn ... 397
Gords, re 210
Gibson, tv 119
Gifford V. Hare 260
Giliet y. Colonial Goyernment 187
Gladstone y. Gladstone 474
Gleeson, ex|Mirfo 888
Globe Diamond Syndicate, re 118
Godionton, eaBjparie 309
Goga y. Resident Magistrate of Eokstad 476
Goldsworthy y. Goldsworthy ... 277, 433
Goosen y. Goosen 2, 86
Gooeen's Executrix, ex /Mir^e 310
Gordon (minors), ex parte Malmesbury
Board of Executors 318
Gordon (minors), re 388
Gould, ex parte 433
Graham's Town and Port Alfred Railway
Co. (in liquidation), re 602
Greeff, expavrte 320
Green, eas porle J. A. 88
„ exjoorieG. ... ... ... 309
, & Brioton y. Duraan and Another 91
Greer, ex fMirto 388
Grobbelaar y. Gons ... 19,815,388,483
Haines y. Haines ...
Hall y. Clarke & Co.
„ (minors), re
Hambly, re
Hand y. Friedman
... ...
...
...
... 209
..» ... Ii3
... 880, 382
120
... 278, 384
Hand & Co., Liquidator of y. Friedman 277
Harcombe Bros. y. De Kockand another 421
HBx%^exparU 278
Harris, ex /MxWe 20
y. Harris 12, 386, 404, 462
f»
Harte y. Frame 125, 277
Hatting (minors), re ,.. 309
Haumao, ex parte 28
Haupt v. Haupt ... « 49
IV
DIGEST OF CASES.
PAGB
Haupt's Insolvent Estate, f'e 62
Hausmann v. Hausmaun 274
Haworth v. Haworth 20
HsLjwsLTd, ex paiie 310
Heathershaw^s Estate, re ... 149, 185
Hedley Brothers v. Lange 323
Heinemaun v. Du Preez 463
Hendrikz, ea; ;)aW« 343
Herbert v. Town Council of Cape Town 272
Herbsty re ... ... ... ... ... 118
Hejdenrych y. Abas and Satea Ill
„ V. B6yce 317
„ V. T>xi Freez 1
„ V. Falconer 192
„ V. Kirby 102, 228
„ V. Woolven 406
Hiuton V. Hinton... 132, 230, 271, 380
Hoffa, exparte 404
Hofmeyr, re Estate of J. H 398
Hollaod, ex par/e J. A 130
„ ex parte V 270
Hosking's EstatCi re 96
Howes, expa'iie 381
Hubbard v. Baggeley 384
Humphries, exparte 433
Hutton, ex par^e ... 19
Incorporated Law Society v. Lloyd ... 12
Indwe Co. v. Colonial Government ... 220
Irwin V. Garlick 122, 126
Jagger & Co. v. Burman 283
James, alias Najiemodien, re Estate of... 345
Jansons v. Jansons ... ... ... 396
Jewell and Rutter v. Hazell & Steer ... 23
Johannes, re .•• ... ... ••• 230
Johnstone's Insolveut Estate, re ... 601
Jones, exparte ... ••• ... ... 394
,. re Estate of Thomas 475
„ V. Matthews 86
Jooste's Estate, re 503
Josling & Co. V. O'Connor 82
Joubert v. Trengove 1
„ 's Estate, re ... ... ... 387
„ and Trengove's Insolvent
Estate, re •*• •■• ••• ••• 12
Joyner*8 Executors, eaJiMtr^e 398
Judd, re ••• ••• •■• •■• ••• 9o
Juta*B Estate, re ... ... 274
KaffVarian Colonial Bank, re
Kalm V. Shabodien ft Co.
Kelman and Bernstein, exparte
Kenealy, eas|Kirte ...
„ exparte,,, ...
Kennie v. Mustard
King Bros, v; Colonial Government
King A Co. and Another v. Begley
•••
PAQB
829,' 38S
... 315
... 421
... 19
... 377
... 276
... IdO
... ^W^k
Kirchhoff, exparte — re Meataer*! Estate 56
Klein v. Klfein ... ... 468
Klinkv. LeDa ..; 129
Koenig & Co v. Yadasz 454
Kotze v. Kotze 314
Kiugel, exjpaWe 2
Krynauw, ex jparte 421
,, re ... ... ... ... i^io
'„ 'd Executors V. Sedan ' 62
Kulu, re 128, 186
Labnschagiie (minor), re 810
Lamberts v. Brauer 1
Lane, ex parte 278
Landman's Insolvent Estate, re ... 281
Lang V. Ahnied Isaac & Co ... ... 877
Lategaxi, eirj>arte..; ... 160
Lawrence v. Bonniweli and Veale ... 118
Lazarus v. Lewis 42
Lee^ ex parte 277
Leffler v. Hudson. • ,.. 100
Leicester Consolidated Mines v. Colonial
Government 418
Le Roux, exparte J. J. F 317
„ exparte P. C. 277
Letterstedt's Estate, re 502
Levies Insolvent Estate, re 161
Levin v. Babinovitz 277
Levy, exparte ... ... ... ... 343
Levyno Bros, ex^rfe 271
Lewin v. Swart 428
Lewis V. Lazarus 42
Lind V. Kleyn ... ••• ... ... 383
„ V. Pitout ... ... ... ... 117
Lindenberg & Dj Yiiliers v. McMillan 474
Lischtty v. Worcester Municipality ... 348
Lizamore (minors), re 12
Loescher v. Kumst 328, 428
}, ,) „ ••• ••• ... Wf f
Longden, ex />ar^e ... 398
Loubser, ex por^e 2
„ Minor, re 42
TABLB 01^ CAftfla.
Lmw ▼. AndiBwa *
LoawTcns and Others
Olhen • •••
LiiBli T. Ben •••
Laji, txparim V. M.
„ ex paHt Li. M.
Lfooa T. Hcaeeo ...
PAOB
T. Potgieter and
• •• ••• ••• 1m
••• ••• ••• ^20
*•• ••• ••• AOv
• ■• ••■ ••• WW
• •• ••• ••■ ^Of
Mtafldprp, ex jMirie 116
MaeliiMKh, es jMUta 4
}iadcie, Duun A Co. v. Port Elizabeth
Harbour Board ... 318
Magistrates* Cases Reiieired , 289
.llahed*a Bstate, re 62
Uahimia t. Mahuina .,. ... 25, 130
llaUierbe, (» ixifi# G. J. 817
„ ex parte i5. P. ... ... ... 309
ICaoia T. Resident Magistrate of Her-
s e u c i ■•• ... ... ... ... 09
Ifancbester Corporation v. Perkins,
Gtaham A Co 224
lUrais, ex/Mtrto A. J 185
^ ex piirte A, J,, J. *Bon 317
Mareasseo t. SkifTe 174
Harico Board of fixecntors v. Anret 252, 442
MartU V. Visser 281
Mamewicke t. S.A. Mutual Society 19, 844
Ifarah, ex parte ... 434
to ▼- Schmidt's Exeoutors 229
liarteU & Co., E., y. I. ft F. MarteU 384, 385
Maniniu, «e/NErte .,. 477
IfsakiBfr'a Executors r. Van ZjFs
Executors 229
Mason t. Bernstein 489
If aster V. Cloete*B Executor 343, 477, 494
n T. Cook's Executor 62
„ T. Dickson 474
tf- T. EsterhujTsen's Executor ...343
„ T. Ferrdra's Executors ... 122
» ▼. Geldenhnys* Executor 343, 496
„ T. Hayman's Trustee 20
,9 T. Uay ward's Executors ... 280
M T. Jones's Executors 309
„ y. Kimlo 383
„ y. King's Executors 277
,» ▼• Louw ... 399
„ T. Nel's Executors 280
,t V- xotgister ... ... ... 474
„ y. Boode 474
„ y. Steenkamp's Executors ... 270
^. y. Talbot's Sureties 270
Matthows y. De Swart ..«
May y. Ayenant ...
MlMinibonduna y. Dhwani
McDonald, ex parte J. •• .
„ ex parte J M.
MoEwan, re Ann ...
•••
...
PAOS
... as
... 809
I. .•• llo
.•« w4o
... 122
457
MoLeod y. Henry Perrins, Jun. •*. 121
McLougblin y. Liberman and another... 244
Meder y. McLeod 343
Meier y. Marquardt 117
Metotjes, MB jMirto .•• ... ... 2
Maixonheimer y. Dieterle 490
Metropolitan A Suburban Railway Co., re 42
Meyer y. Meyer's Executors 288
„ 's Estate, re 62, 96
Mgiet's Executors Patiye and Another
y. JLya ... ... ... ..« 4Sf|i
Miles's Estate, rs 390
Mills, EsUte of Sir Charles, re, 123. 278, 394
Minchin, eaB/XMte 343
Minnaar, ex/Mirto 817
Mitchell's Executrix y. Registrar of
Deeds, King William's Town ...211
Moll y. Ciyil Commissioner of the Paarl
and Others ,., ,. 454
MoUer y. De Kock 129
Molony y. Cheifits .•• 478
Morgan, ex parte ,.• ••• •#• ... 149
Morum Bros, y. Hack 467
Mostert's Estate, re 278
MuUer, re ... ... ... ••• ... 95
Municipslity of Alice y. Crallen • . 409
Murray, tfx/Kirto .., 209
„ 's Estate, re 117
M and Others y. R.M. of Cape
Town and Others 487
Mutual Co. y. Coetzee 209
Nash y. Jones and Another 277
„ y. W. Joues and F. T. Jones ... 388
Natal Bank y. Victor Woolff ... 383, 392
Nathan, ex parte 277
iMei, re ... ... ••* ... ... mO\}
„ ex parte ... ... ... ••• 421
M and Another y. Du Toit 200
Nicholson, ex parte 309
„ y. Myburgh 411
Nieuwoudt y. the Registrar of Deeds ... 238
Noonan y. Noonau 96
Noyember y. Noyember... 131, 185, 334
IV
TABLE OF CASES.
•••
Oak*8 Estate, re ...
** Oberoo/' re
OoBthuysen t. PieDaar
Opp€iy re ••• ••• ••• •••
ff V • vppoi ••• ••• ••■
Orr v. Scowen ... .#.
Orren, exparU
O'Sullivao V. Warburtoo
Oadtflbooro Towa Council, re ...
PAGE
... 42
... 44
... 406
... 122
278, 396
... 19
... 2
... 331
123, 186
Paari Fire A asur. and Tnwt Co., re 210, 476
...
...
• a.
...
...
...
• ••
...
t •.
• *•
434, 476
100, 117
... 474
... 117
... 158
... 97
... 399
... 271
... 379
... 2
... 262
... 11. 168, 298, 894
,., •*• ••• i«^
• «• ... ... xOt*
• *• ... 9««$, 474
Port Elizabetb Boating Co. (in liquida-
tion), re ... ... ... ••• 96
Port Elizabetb Harbour Board v. Mackie,
Dunn A Co. ... ... ... ••• 468
Potgieter and Others v. Potgieier and
Otbers 602
Powell's Estate, re 467
Powley's Estate, re 386
Powrie v. Powrie 191
Principal Officer of Customt, ew parte ... 394
Pringle, ex parie 88
Pace V. Pace
Ptirker, re
„ y. Matcfaam
Paulsen, re
Peck T. Philip & Co.
K enn, re ••• ••■ •••
Perk8*« £ze<utrix, ex parte
Perrins v. Newlands
Phillip's Estate, re
Pienaar, ex parte ...
Pinker v. Oill ...
Pirie t. Pirie
Piton, ex parte
Pitt, ex parte
Plant, re
Qninn y. Gordon Castle
Rasmen's Estate, re
Bautenbach, ex parte ..^
Redelinghuys t. Van der Merwe
Regina v. Abel •••
v. Abel ... ••• ••
y. Booy Zana
T. Budd and Shortle ..
y. Collzea
y. Dora Keleman
tt
u
tr
>9
• t»
... 129
... 274
... 271
... 377
... 466
... 478
... 426
... 438
... 394
... 329
«•..
»9
f)
99
9»
>9
»»
91
9>
• ••
Beginar. Field
y. Jameson
y. Le Roux
y. Lodewyk Holomona ...
y. Maraia ... ■*. *••
y. Maigongo
y. Matroos and Otbers «••
PAGS
,.. 104
... 390
... 434
... 1
... 13
... 320
y. Mitchell ... 123
y. Nel ••• ••• ... 438
y. Btephen Picqu({rr and Gabriel
99
f)
...
...
881
... 88
... 1
... 46tf
•••
..« ISO
... 274
...
49
... 200
... 887
... 12P
... 380
...323
... 271
... 383
September ...
y. Stuurman
y. Yan Boyen
y. Viljoen
Reid y. The Suryeyor-General ...
Reinecke, re ... ... .*•
Rennie's Estate, re
Reynolds y. Oak
Rhoden y . Fourie . . . ... .'.«
Richards & Shea, ex parte
Richardson, ex parte
Richardson y. Warren
Robertson (minor), re
Robertson & Bain y. Carolus ...
Robinson, ex parte
Rolfes, Nebel A Co. y. Port Elisabeth
Harbour Board •• 438
Rondebosch Municipality, ex parte ... 2
„ y. Cape Dis-
triots Waterworks Co 482
Roode y. Jeptha ... ••* ... ••• 225
Roodt's Estate, re ... ... 327, 389
BjosSf ex parte 186
... 383
... 277
... 174
Roux, re J. P. ••• 475
rtf P. .•• ••• ••• ••• ^'O
Rowe y. Nel and Another «.. ... 380
Rudin, ex parte ... 388
Ryklief s Estate, re 378
„ y. Cohen
„ y. Neser
...
...
...
•••
...
Sakeer's Estate, re
Ssmey'e Estate, re
Samson y. Samson . •
ScKDlesi^ ex parte
Scanlen & Syiret y. De Villiers...
Schaap and Others y. Solomon
Schmidt (minors), re
Schoeman's Estate, re
... 344
... 118
... 51
... 209
... 9
.«■ 9d
... s^^"^
348
...
tABt£ 01^ CASES.
«•
vu
PAGE
SdioeBiui v. The Gape Ijime Co. ... 8fi0
SchocTcny. Da Pleuis 291
Sebolti T. Vmo der B7I and Another ... 327
BdioaBberg (minora), re 317
Scfaooiinad*s Estate, r# 388
Sdiraber y. S. A. Tobacco Company and
I^dington ••• ... ... ... 83
8diweii0r y. Mybnrgh 474
8coftt*8 Ante-nuptial Contract, re ... 240
9 Estate, re 389
Scanglit A Go. y. Marcasseu 107
Sedgwick A Co. y. Plumbljr 267
Scrricr y. Weiner 601
Shark, ca; parte 404
Shaw y. Oppennann 129
Shaw & Moorfaead, Reeeiyer of, and
Another y. Moorhead*8 Tmitees
and Another 319
Shear y. Bademeyer 46
Shearer'a Ezeeatriz y. Whitehead ... 186
Srodair y. Thompaoo. Ratcliffe ft Co. ... 381
Smit y. Smiths Exocatrix 142
Staitby. Haa ••• ••* ..t •«• 883
SBOok, exjpQiffs ••• •*. ... ••• 96
Snuits ft Go. y. Dnnn ft Co 11^;
Snnti ft Koch y. Van Jaarsyeld ... 82
Sodl, ecjMfie 344
fiiiTinan (mioorB}, ^^ 180
„ •.• ••* •*. 47o
y. Van Heerden ... ... 168
Soeker*8 Exeentors y. Lawrence ••• 224
Sohmon, cxjNzrie... 277
Saath African Aaaociation y. Angnstyn 2
„ y. King ... 185
Milling Co. y. Marais ... 148
Mutual Society y. DeWaal 50l
„ ,. V. Viyiera 50l
Standard Bank y. De Villiers 117
„ y. FUnders 19
Stanton, re 130
Steer ft Go. t. Rowlands 400
Blein ft Go. t. Hewitson ft Jeffrey ... 121
Stanmet, re 118
Stqiban Bros. y. The Annandale Baking
V/O. ••• ... ... ••• ... l^A
Steyn, ex parte ... ... 122
Stork, ev parte 326,389
Stri^iand'a Inaolyent Estate, r« ... 478
Stcoyon, ex parte ... ... ... ... 323
8tXBiwer» ex parte ... 278
n
ft
9*
PAOB
Stark ft Co. y. Dieterle ...
«•• 96
Swanaon y. Walker
••• 309
Swartbooi, ex parte •••
... 476
Swartz*8 Insolvent Estate, re
... 475
Swemmer y. Strydom
... 444
Sytner y. Cohen
... 16
Sytner y. Sytner
... 194
Table Bay Harbour Board y. The
Deputy Sheriff of Cape Town ... 312
Table Bay Harbour Board y. The
Master, ''Gordon Castle " 122
Tarry*B Estate, re 882
Tennant, ex parte 503
Terblanm, ex parte 180
Teubes v. Lakas 42
„ y. Matthews ... ... ... 51
Thacker y. Fourie 182
Theron and another v. Schoombie ... 213
Theuois8en*s Entate, re 386
Thomas y Thomas 374
Thompson y. Barkly East Rinderpest
Committe-) • 414
Thompson v. Brown 479
Thompson and others y. Bennett ... 192
Thorn e, Stnttaford ft Co. v. Effendi ... 317
Town Council of Cape Town v. Falconer 384
„ „ ,. y.Murison 95
Tregidga & Co. y. Siyewright, N.O. ... 67
Trenley, Birch ft Co. v. De Villiers ... 95
Tniter, ex parte^ A. R , 377
„ ex parte ^ J, 1^, J ... ••• ... 209
„ v. Truter 345, 394
Tarvey y. Bradfield 119
Tyfield, fxjiorte 877
Union Bank re 12, 20, 210, 274
Union Boating Co. (in liquidation), re... 95
Uys y. Western Province Exploration
Syndicate 384, 404
Yadasz v. Koenig ft Co
... 820
Van den Heever v. Du Toit
... 66
Van der Byl, ex parte •••
... 149
„ ft Co. V. Lucke ...
... 95
,9 „ V. Poole ...
... 117
y, „ y. Schmidt ...
884, 392
„ ,, y. Swindell ...
... 884
„ and Others v. Scholtz
210, 327, 380, 468
TABLE OF CA8B6.
PAOB
Van dor Merwe's Eetate, re » 389
„ V. Vo8 329
Van der Poel v. Goetzee 404, 474
„ 's Executors v. Malan 474
Yan der Spuy v. Colonial Goyernment 427
„ Westhaizen, «x jporltf 2
^ „ V. Van der Wert-
huizen »•• ••• ••• ••• '388
Van Gass v. Taylor and Tnisteee and
J. andT. Van Gass 423
Van Gass* Executors y. Van Gass and
Others 454
Van Gass* Insolyent Estate, re 382
Van Heerden, ea;/?ar<6 277
y, „ (minors), re 380
„ „ y. Van Heerden 209
Van Niekerk y. Fagan 57
\f y. Van Niekerk 176
's Insolyent Estate, re ... 231
(minors), re 42
Van Noorden, ex parte 19, 95
Van Oudtshoom's Executors y. Van
Gudtshoom's Executor Daxi?e and
Others 423, 494
Van Pelt, eo; iHMie 2
Van Hensburg (minors) re 380
Van Rooyen, ex parte 283
3, *s Insolyent Estate, re ... 478
Vin Ryneyeld, ex /Mzrfo 116
Van Scbalkwyk y. Hauman 195
Van Sittert, ex jMrrfo 83
„. r. Van Sittert 123
Van Zyl, ex |>arte P. A ... 2
„ ex parte Q. 3 <• ••• 473
„ (minors) re 318
„ y. Van Niekerk 383
Venter, ex jpctr^ ••• ••• ••• ••• 117
Viljoen y. Hamman ... 240
„ y. Viljoen ' ... ... 97, 123
Villafre Management Board of Berlin y.
ft
Keth •••
'iTisagic, re
„ (minors), re
Viyiersy. Grcsse...
Vb8loo,e«;>fl^
•••
... Oa9
... 117
... 131
... 1
... 392
PAGE
Walker, ear /ww/e 270
„ y. Price ... •.. .•• ••• 293
„ 's Executors v. Eksteen's Exe-
cutrix — ex popie Van Beden ... 422
Walsh, re 122
Walter, ear jparte 343
Wanklyn y. Le Grew 2
Warren and Osborne y. Munro Brothers 316
Watson A Go. y. Broadlent A Oo. ... 121
„ „ y. F. L. Broadbent .« 509
„ „ y. M. T. Broadbent ... 3<«
Webner y. Bam 228
W«lls y. Lippiatt 2
Welt, ex parte ..* ^^1
„ V. Welt •. ••• 386
Weymark y. Weymark 279, 386
Weyuack, ex parte 130
White y. Adams 161
White, Ryan & Co. y. Greenfield ... 121
Whitehead) ex /lorte 457
„ y. Shearer's Executrix 817, 479
Will y. De Juy **
Will V. SchmoU & Co 501
Wilson (minors), re 309
Wilson and Oinamon y. Hirshler ... 289
Windley y. Fayre ... ^^
Winquist, re • *'
Winlerbach v. Worcester Municipality 385
Withinsbaw & Co. y. Lindsay 122
Wolbuter y. Maddison 246
Wolstone y. Woktone ... 12, 160, 274
Wood y. Myburgh 229,240
Woodhead, Plant & Oo. y. Gully 75, 120
y. Pedersen and
Another ... ••• ••• ••• **
Woodhead, Plant & Co. y. The
"Gregorio" • ...'ISO
Wordbn y. Wordon .' — "385
Wright, Crossley & Co. V. The Royal
Baking Powder Co. of NeW York... 405
Wynne, ex parie ... ... -— — *
...
...
Zieryogel, re
Zozi y. Nanisi
ZwatBnstein y. Jones.
•••
... 68
... 3»
Ml
...
CASES DECIDED IN THE SUPREME COURT,
SUPREME COURT.
[lt«foK the Htghi Hon. Sir J. H. DS Villdebs,
K.C.M.G. CCbief Jueiioe), Him. Mr. Justice
BocHAiiAH, and Hem. Mr. Jusiioe Maas-
DOBP.^
IBQIHA T. VAN BOTSK.
• 1897.
)Jan. 12Ul
Liqoor Licence — Act 28 of 1883, sections 76
and 85 — ^Penalty — Forfeiture.
The Chief Justice said: Amongst tiie oases
whidi came before me as jndge of the week was
ifaii of the Qoeen t. Yan Boven. It was tried
iMfore the Assistant Resident Magistrate of
M almeabiiry, at a Court holden at Hopefield,
iior oontraTention of the 76th section of Act 28
o€ 1S83. The CTidenee is clear as to the guilt,
b«i the Magistrate, in passing sentence, ordered
tibe a<eeciBed to pay £6 or undergo two months*
iaapHaimmeiit, and the licence was declared
forfeited. The 76th section only authorises
11m M««istnite to declare the licence forfeited.
I aeafc the case to the Magistrate, with an
as to what section he had in view when
itenced the man to pay a fine. He
me to the 86th section, which provides
a fine may be inflicted for the contra-
of any of the provisionB of the Act for
no penalty is specially proTlded. The
is that a penalty is specially provided in
TS, namely a forfeiture of the licence.
This section 76 is clearly not one of the sections
vliidi would hUX under the 85th section. We
■ni of opinion^ therefore, that the sentence of
siioiild be (luashed, though, of course, the
win be declared forfeited.
f 1897.
(Jan. 13th.
IIMA T. LODBWTK BOLOM088,
▲UA8 ABHADUB PLAATJE8.
Mr. Justice Buchanan said that in this
eaae which came before him as judge of the
week, a pcepaiatory examination was held by
fte Beaadent Magistrate of Knysna, on a charge
ef slore-bfeaking with intent to steal and theft.
The papers were sent to the Attorney-General,
aad the Attom^-Oeneral remitted the case to
the Magistrate for Mai on the oharge of theft
B
only. The Magistrate, howcTcr, charged the
prisoner with store-breaking and theft, overlook -
iug the reservation. He passed a sentence of
twelvemonths' imprisonment on the two charges,
but said that if he had only convicted on a oharge
of theft the sentence would have been only six
months. The sentence will therefore be re-
duced to one of six months* imprisonment with
hard labour.
PROVIBIONAL ROLL.
CX)IX)NIAL OKPHAN OHAMBBB Y. HUNTEB.
Mr. Tredgold applied for provisional sen-
tence for the sum of £126, interest from July 1,
1896, to December 81, 1896, at 6 per cent, on a
mortgage bond for £1,400.
Granted.
JOUBEBT y. TBBNGOVJB.
Mr. McGregor applied for final adjudication
of the defendant's estate.
Granted.
LAMBBBTZ T. BBAUEB.
Mr. Buchanan applied for provisional sentence
on a bill of exchange.
Granted.
HBTDENTBOH ▼. J. S. DU PBBBZ.
Interest — Limitation to amount of piinci-
pal.
Mr. McGregor applied for provisional sen-
tence on a mortgage bond for £60, with interest
at the rate of 8 per cent, from December 20,
1882, and asked that the property specially
hypothecated be declared executable.
Order granted, limiting the amount of in-
terest, however, to the amount d the capital.
TIYIBBg v. OBB8SB.
Mr. Maskew applied for provisional sentence
for £96, with interest from March 14, 1896.
Provisional sentence granted.
DRAM AT v. GAUAAB.
Mr. Graham applied for final adjudication of
the defendant 'b eetate.
Granted.
S.A. ASaOCIATION V. AUGUBTYN.
Mr. Mabkew applied for provisional sentence
for £54, being twelve monthB* interest on a bond
for £900.
Provisional sentence granted.
ILLIQUID ROLL.
WELLS V. LIPPIATT.
Mr. Buchanan asked for judgment under Bule
329D for £56 for goods sold.
Granted.
COLONIAL GOVERNMKNT V. NOLTZYKOP GOLD-
MINING COMPANY.
Mr. 8heil (Acting Attorney -General) applied
for judgment under Rule 329D for £864, licence
money due in respect of mining claims at
Knysna, with interest a Umporc nwrae and
costs.
Granted.
GENERAL MOTIONS.
WANKLYN V. LEORBW.
Mr. Buchanan applied for judgment under
Rule 329d for £198 168. 3d., goods supplied, less
£64, together with interest a tempore viorac.
8CANLEN AND SYFRKT V. DB VILLIERS.
Mr. Close applied for judgment under Rule 329d
for £64 lOs., with interest a tempore nwaa^ and
costs of suit, the debt being owing on balance
of account for professional services.
Granted.
ADM IB6 IONS.
The following admissions were made :
Daniel de Waal, advocate; William James
Wynne, conveyancer; Gertrude Blather, trans-
lator ; Carolina Sophia van Pelt, translator ;
Pieter Adriaan van Zylj translator ; Hendrik
Adriaan Meiutjes, attorney and notary.
BBUABILITATI0N8.
The Court granted the following rehabilita-
tions : Johan George Fourie. jun.. John William
Orren, Maria Elizabeth Hauman, Charl
Jacobus Krugel, Johannes Frederick
Pienaar, Andrew Develing, Marthinus Petrus
Loubser, and Johannes Hermanus van der
Westhuisen.
TUB PHTTITION OF HCNBIBTTA A. GOOAKN.
Mr, Jones applied for leare to sue
by edictal citation in an action against
her hasband for restitution of ooDJagml
rights, failing which for divorce, by reaaon of
his malicious desertion, and for an order giTUiR
her the oustody of the two miDor children of
the marriage.
Order granted; personal service if poesible,
failing which, publication in the JohanBesburi?
" Star " and Pretoria *' Vollisstem," with leav» to
serve the intendit and notice of trial with the
citation. Return day, February 18.
THB PETITIOK OP THB RONDBBOflCH M0NIOI-
PALmr.
Mr. Graham applied to make ahflolute
the rule niH for the attachment and
sale in execution under the Titles Regis-
tration and Derelict Lands Act of
1881, for payment of the rates due thereon of
certain piece of freehold land, marked No. 235,
on the Camp Ground at Rondebosoh, registered
in the name of George F. Parker, but abandoned
and left derelict for many years.
Granted.
S 1896.
IJan. 12th.
COLONIAL OOVKENMKHT V. COOK
BROS.
Appeal— Privy Council— Recogniaanoe.
An appllcntion to enfreffta recognimnce for the
(lac proH€cution of an apjmd to the Prlrt/
Council cannot be heard iriVwut notke to (he
mretkx. At a f/eneral rtde an apidkation to
discharge leave (fiven by the Supreme Court
in appeal shouUl be made to the Privy Cbiwt-
ciL
This was an application on notice to the re-
spondents, for an order estreating the recogni-
sance entered into by them and discharging th«
order of the 19th March, 1896, granting them
leave to appeal from the judgment given in the
action brought by them against the Colonial
Government or for other relief as set forth in
the petition. The respondents were further
called upon to show cause why the application
should not be granted with costs.
The petition of the applicant. Sir Gordon
Sprigg, K.O.M.G., Prime Minister and Treasurer-
General of the Colony, set forth :
That on the 11th March, 1895, judgnient was
given in the Supreme Court in favour of the
Cokiaial GoTemmeiii in an action ioBtituted by
ths ptcMsi respondents, for a declaration of
i^tB and ilfiTnagftfl.*
natonttke 19th Harch, 1895, the plaiotifb
applied for and obtained leare to appeal to Her
Maici^ in Her Privy Council from the said
jadffmeot«
That within three montba thereafter, the
pla i atifFB entered into a recogniBance under Rule
98, inr the due proeecution of the appeal, but
that flooe then no atepa whatever had been
lakea hy them to prosecute their appeal.
After referring to Bnles 2 and 5 of the Privy
OooBcil, the petition went on to allege that in
aceordanee with the well-eetahliahed practice
pnvailinf; in the office of the Registrar of the
Seprcme Court, it was the duty of the appellants
penonally or throuf^h their attorneys, to give
•siiee to the Beglstrar of their intention of
Vieeecding with the appeal, and to request that
the reeorda be prepared, whereupon the Regis-
trar prepares the record, snd the prescribed fees
ate psid by tiie appellants.
That the appellants in this case had failed to
give the required notice, and had neither paid,
■or<rilmdtopay, the fees payable in connec-
tion with the preparation and tranHmission of
the records, and had thereby failed duly to pro-
ssente their appeal.
That by reason of the aforesaid failure of the
appellsnts. the Colonial Government had been
debarred from obtaining the benefits of the
rules of the Privy Council.
That the delay of the appellants in duly pro-
seeating their appeal was vexatious and unrea-
sonahle, and the Colonial Government was
tmbarrsased by having the appeal held over
indefiaitely.
The prayer was for an order (1) either estreat-
ing the recognisance entered into by the appel-
lants snd discharging the order granting leave
to appeal, or (2) fixing a time within which the
appellants must duly prosecute their appeal.
The respondents tiled an affidavit, in reply in
which they detailed various circumstaneeB (none
of them very weighty) which had contributed
to the delay, and alleged that they had never
ahsndored their intention of prosecuting the
appssL
Mr. Sheil, Acting Attorney-General (with
him Mr. Schreiuer, Q.C.), for the applicant •*
The object of Kule 38 in requiring that the party
aimellant and his two sureties should enter into
the TteoKuiatLDee provided for by the rule is
tvo-fold :
* Vide Cook Bros. v. Colonial Qoremment (5 Sheil
M7).
I Ist. That the appeal should be duly prose-
cuted and :
2nd. That the costs of the party respondent
should be secured.
No mention is made in our rules or in the
rules of the Privy Council as to the time within
which an appeal munt be prosecuted after leave
to appeal has been given. But an indication is
afforded in Rule 2 of the Privy Council that the
appeal should be prosecuted as soon as possible
after leave has been given to appeal.
It could never he contended that the Privy
Council in framing that rule intended to inter-
fere in any way with the practice of the
Colonial Court from which the appeal wan
brought as to the payment of oflice fecH in con-
neetion with the preparation of the record :
In fact the concluding part of Rule 2 shows
that it was contemplated that all fees and
expenses should have been paid before the
despatch of the record, otherwise it would be
impossible for the Registrar to ^ive the certifi-
cate required by the rule.
Consequently until the feoH have been paid
and the Registrar instructed to prepare the
record there can be no prosecution of the
appeal.
In the present case leave was given to appeal
nearly two years ago, during which time no
steps whatever have been taken to prosecute
the appeal.
There has therefore been a breach of one of
the conditions of the bond, viz., that the
appeal would be duly prosecuted, and the
Qovernment is now entitled after the length of
time that has elapsed to come to the Court and
ask that the bond should he estreated.
De Villiers, C.J. : How can the Court estreat
the bond if the sureties are not before us ?
They have not been made parties to this appli-
cation.
Mr. Sheil : Th9 sureties can be in no way pre-
judiced. They were not made parties to this
application because no costs had been incurred
by the Government in respect of which they
could have been held liable. But the main con-
dition of the bond, viz., due prosecution of the
appeal, has been broken and it is in consequence
of that breach that wc ask that the bond should
be estreated,
De VilHerd, C.J. : But has the Court jurisdic-
tion ? Should you not go the Privy Council ?
Mr. Sheil : It is submitted that this Court
has jurisdiction. The bond was entered into in
this Court, and the order of the 19th March,
1895, was made conditionally on the bond being
entered into and its covenants complied with.
In 1831 when appeals were brought from this
Colony direct to the King in Council, this Uourt
held that notwithstuidiDg that the appeal
pending it had jurisdiction to dismiss an appeal
which had not been duly prosecuted. See
MorrUoH Y. Anderson and Stenh^ute (1 Mt^ni.,
527).
In the present case also the appeal has not
been duly prosecuted and the party respondent,
the Goyemment, is clearly entitled to come to
the Court and ask that the order of the 19th
March, 1896, should now be eanoelled.
De Villiers, G.J. : How can the Court cancel
a final order ?
Ml. Sheil: The order it is submitted was not
final, it was interlocutory in its nature,
inasmuch as a condition was attached to it
that the conditions of the recognisance,
required by the S8th Bule of Court, should be
complied with, and this the appellants bare
failed to do.
Mr. Innes, Q.C. (*vith him Mr. Graham), for
the respondents : Section 50 of the Charter of
Justice settles all conditions on which an
appeal is allowed to the Prlyy CounciL For a
period up to three months the grant of leare is
provisional or interlocutory, after that if
security has been provided it becomes final. As
in De Montmari r. Board of ExeoHtoTf (4
Juta, 61), leave to appeal can be withdrawn if
that condition fails. The Privy Council must
make its own rules as to appeal. Take a pre-
cisely analogous case, our Resident Magistrate's
Court Act (No. 20 of 1856) does not provide for
"due prosecution of appeal," but this Court,
the upper Court of Appeal, has, even in cases
where the record was still in the Court below,
over and over again said it would decide what
was a fit and proper time within which to
bring on a case on appeal. Rymer v. Solomon
(4 Sheil, 223). See also MoPher$on*$ (" Practice
of the Judicial Committee, Privy Council *' (page
94). In this case undoubtedly there has been con-
siderable delay, but look at the inconvenience
of the present course, even if the Court has
jurisdiction, but we contend the Court \%funetu4
officio. With regard to Stenhoute't ea$e it does
not appear to have been argued on this point,
viz., of the time to appeal. The only condition
in section 50 of the Charter of Justice is that
the recognisance be entered into in the three
months. This case is probably a oas^n oniusu^,
Mr. Sheil in reply.
De Villiers, C. J. : The object of this applica-
tion is two-fold: to estreat the recognisance
entered into by the present respondents for the
due prosecution of their appeal to the Privy
Council, and to discharge the order of this
Court granting them leave to appeal. As to the
recognisance, it is obvious that the Court cannot
grder It to be estreated without du^ uotice to the
sureties. They are interested in snob an order,
even although the immediate effect of the order
might not be to render them liable for the pay-
ment of any sum of money As to the discharge
of the leave to appeal, I am not prepared to say
that this Court has no jurisdiction to withdraw
its leave on suflScient cause shown, but the cause
shown in the present case is insufficient. The
circumstances of the case of Morrison v. Ander-
son (I Mens. 627), which is relied on by the
applicant, were wholly different from thoae of
the present case. There had been a delay of tea
years, there was clearly no intention to proceed
with the appeal, and the only question argued
seems to have been whether the obUgation of
the recognisance could be enforced by motion
instead of by action. As a general rule, in my
opinion, applications to discharge leave to
appeal should be made to the Privy Oouaeil.
In the present case there has been eonsiderable
delay, but not of sueh length as to justify this
Court in concluding that the intention to pro-
secute the appeal has been abandoned. The
application must be refused, but there will be
no order as to costs.
[Government Attorneys, J. k H. Beid ft
Nephew ; Respondent's Attorney, C. C. Bilber-
bauer.]
THB PETITION OF WILLIAM MAOIKTOSH.
Mr. McGregor applied to make abso-
lute the rule nisi issued under the Titles
Registration and Derelict Lands Act, 1881, for
transfer to petitioner of certain land, perUon of
the Rufane Vale Estate,Tort Bliiabeth, rsMrved
according to diagram for roads which were
never made, petitioneir being owner of the whole
of the land sub-divided, and he and hia pre-
decessors in title having occupied the said re-
served spaces for about thirty-seven years.
Granted.
In re OONSIBTOBT OF THB DITTGH \
r. J
1896.
BEFORMED OHUBCH, CAPE TOWN. ) Jan. 12th.
Burial ground —Alienation — Grant — Con-
dition — FUlei-comm isftum — Trust.
Certain land having been granted by the
Govemnient to the applicants to be used an a
burial ground for the inhabitanttt of C^ipe
Town^ the applicants allotted and trafis-
ferred differefU plots for the puriMne of
erecting vaults thereon, but the traptfifers
icere not registered in the Deeds Office.
Under section 64 of Act 4 of 1883 the
Governor has direct^ that buriah on the
lajid shall be diacontitmed.
The a^icauUy having told a portiofi of the
IomU fgr the purpowe of erecting thereou a
Huguenoi Memorial^ npidieil to the Court
for its mtnct'ion to $uclt mle and tnmrfer.
Held that «urA sanction could not be granted
VHihoul iht consent of the Gov^rmnent and
of the heirs of ilie aUottees whose uiults
had been erected icUhin the portion so pro-
ptMed to be transferred.
This was an application to make abaoliite
the nde nisi for authority 1o petitioners to trans*
fer to the Hngnenot Memorial Committee a
certain portion of the land in Cape
TowB granted to the said church in the years
1755 and 1801 for burial purposes, such land
being no loager used as a graveyard.
Mr. Innes, Q.C. (with him Mr. GrahamX
appeared for the applicants.
Mr. Sheil, Acting Attorcey-General (with him
Mr. Bisaet), appeared for the Colonial Govern*
ment.
Mr. 8chreiner, Q.C. (with him with Mr. Boos),
appeared for certain parties who had filed
affidavite to oppose.
The mle nisi was granted on the petition of
the Reverend Abraham Isaac Steytler, V.D.M.,
and Pieter Marais, members of the Consistory
(Kerkeraad) of the Dutch Reformed Church,
Cape Town, acting for and on behalf of the said
eonsistory.
The petition set forth :
1. That your first-named petitioner is one of
the ministers of the said Church and a member
of the said consistory. Your second-named
petitioner is an elder of the said church and is
also a member of the said consistory.
2. That yonr petitioners have been jointly
authorised to approach your Honourable Court
on the matters hereinafter set forth, and beg to
annex hereto, marked A, a copy of the resolution
of the said consistory granting such authority.
5. That on the 2nd day of July, 1755, a grant
of a certain piece of land, in extent 429 square
roods and liO square feet, was made by the then
Governor of this colony to the deaconry there-
inmentioned and hereinafter referred to, to serve
IS a burial place or churchyard for the inhabi-
tants of this city, a certified translation of which
grant is hereunto annexed marked B.
i. That the said grant was made at the
request of the Consistory of the Dutch Reformed
Church as appears from the minute books of
the said consistory, inasmuch as at the date of
the application therefor and issue thereof tue
existing borial ground of the said church
9on}d not be iitillsed for further burials owing
to a severe epideukio of smaU-pox^hsa preratat
in this oity. The burial gronnd for whieh the
said grant was substituted was situate adjao^t
to the present Dutch Reformed Building and
constitutes the land upon part of whi^ the
University and oAer buildings are now ereeled,
the other has l)een converted into what is dow
Bureau-street
6. The deaoonry mentioned in the said grant
was an administration «f deaeons of the' said
Dntch Reformed Chureh (whkfa was #t that
date the only eeolesiastieal hoOsf in this oity),
appointed and eontroUed by and aetiag la every
respect under the direoHons of the said eoasls-
lory, and the Mid deaoonry was eharged with
the care and execution of the charitable works
inatupiratcd by the sakl consistory,
d Prom the date of the issue of the Mid
grant up to the present time the said eonsistory
exercised sole and entire eoBtrol over the land
forming the subject of the said grant, and the
said land was In every way administered and
possessed in ownership by the said eonsistory.
7. That on the 8th April, 1801, the GOYcmor
issued a further grant to the said oonslslory on
their applieation for the enlaigement of the
aforementioned churchyard, in extent 886
square roods and 44 square feet ; a certified trans-
lation of the said grant is hereunto annexed
marked C.
8. That on the 9th February, 1808. a further
grant of land. In extent 8217 square hmkU and
112 square feet, was made by the Oovemor to
the said oonsistory on their application. In
addition to the aforementioned grant for a
burial ground, but the said grant is not aif ected
by the matters referred to in this petition.
9. That on the a6th day of February, 1880, the
trustees of the property then lately adminis-
tered by the Burgher Senate, transferred to the
said Dutch Reformed Church an extent of land
measuring 4 morgen 98 square roods 9&\ square
feet to be appropriated as a new burial place.
The whole of this land was, with the consent of
the Colonial Government, sold to various pur-
chasers for building purposes, and duly
transferred in the office of the Registrar of
Deeds of this colony. Tour petitioners annex
hereto, marked D, a copy of the letter addressed
to the said consistory by the Assistant-
Commissioner of Crown Lands dated ISth
April, 1978, authorising such sale.
10. That the land comprised in the grants
referred to in paragraphs 3 to 7 of this petition
and generally known as the Somerset-road
Cemetery, was from the dates of the saldgraats
up to the enforcement of the provisions of this
Act Ma 4 of 1883, entltied the ** Publlo HealUi
6
1
AH, 19eS,"«Md bf thd Mid eonilHory fer tlM
faiiBniieiit of deMM6d memben of the Mid
Anrdi And for Ui« purpow of other bwiiilf.
11. Hiai under uid by Tirtueof the funoTielone
of the Mid Act, the Mid oemeteries were on or
aboat the Uth d%j of Januarj, 1886, duly cloMd,
dnoe which date no intermente hnye taken plsoe
there.
IS. That sinoe that time, bnrials under the
rItM of the Mid ehnreh hare taken iilaoe at the
eemeteriei, allotted to the Mid ehureU Mpa*
ratelTf and nted by iti adherent! jointly with
ether denomtnationB at Haitland, and purohaf ed
by the eaid ehnroh at Mowbray, to which oeme*
terlee the remains of many pereone haTe been
removed from the aforementioned dieaeedborial
gronnd, and In the courw of time interest in the
•aid Somenet-road Cemetery hai, coneequent
npon its disuM and for other rcMon*, ceaaed.
The deeoendants of families originally having
vanltsor allotments therein have abstained from
keeping them In repair, and gnves and tomb-
stonM are not ths eabjeot of attention on their
part
13. That trt/m time to time, the Mid consis-
tory hM been obliged to expend considerable
same of money npon repairs to vaults, tomb-
stones and grates, and such expenditure has
affected the funds of the Mid church and ham-
pered the Mid consistory in the administration
•f traste committed to its charge, and the pro-
motion of ehnroh works and objects.
U. That your petitloneri respectfully submit
on behalf of the Mid consistory, that the main-
tenance and repairs connected with the Mid dis-
used cemetery will, in oourM of time, continue
to be a further tax upon the rescuroM of the
Mid church, and an impediment to its
woik.
Ifi. That the Mid consistory have received and
favouMbly entertained an applicati<» from the
Huguenot Memorial Committee of the Synod of
the Dutch Reformed Church in South AfriM,
for the purohaM of a certain portion of the Mid
disused cemetery, and on the 15th day of Sep-
tember last past, MUsed a letter to be addressed
to the Honourable the Secretary of Agriculture,
requMting his consent to the proposed aliena-
tion. In so doing the Mid consistory followed
the practice of obtaining the consent of Qovem-
msnt as had appertained in connection with the
alienation of Uie land, referred to in paragraph
9 of this petition. Tour petitioners beg to refer
your lordships to a copy of the said letter
marked X, and to the ultimate reply received
from the Seeietary, hereunto annexed marked
F.
1$. That the Mid consistory are still preparsi
to abide \ij the terms of their laid letter marki|
X.
17. That a survey has bMn made of the laal
proposed to be alienated to the Mid Hqgusnsl
Memorial Committee, and your petitioners b^
iMve to annex hereto, marked O, a diagram;
framed by Charles Marais, Government ma*
veyor, fully delineating the Mid disused ceme*!
tery. The coloured portion marked A, B, C, D,
on the said diagram, representing 284 square
roods and 88 square feet of land, is the extMt
which the Mid consistory is prepared te
transfer to the Mid Huguenot Memorial Com-
mittee for the sum of £1,601 lOs. Sd. sterling.
18. That the said consistory intend to and
will apply the amount received to work, pur-
poM^, and objects of the Mid Dutch Reformed
Church, as administered by the said consistory,
and your petitioners beg to submit that it will
be to the advantage of the Mid church to carry
the proposed transaction into effect.
19. That your petitioners are aware that the
said Huguenot Memorial Committee have for
sometime put sought to secure an eligible site
for the erection of buildings which they con*
template m a memorial, but have not been
successful owing to the high prices of landed
estate in desirable parts of the city. And your
petitioners are cognisant of the fact that the
site desired to be obtained from the Consistory
is considered eminently suitable for the Mid
purpoM and is in every respect regarded m
advantageous to the Mid committee.
20. That your petitioners are advised that the
Registrar of Deeds will not be in a position to
allow transfer to pass from the said consistory
to the Mid committee unless authorised thereto
by this Honourable Court.
The petitioners prayed for an order authoris-
ing the Registrar of Deeds to allow transfer
and conveyance to pass from the Consistoiy of
the Mid Dutch Reformed Church of Cape
Town to the trustees to be appointed tar the
time being by the said Huguenot Memorial
Committee of the Synod of the Dutch Reformed
Church in South Africa, of a portion of the
Mid property, to wit: a certain piece of land
mcMuring 284 square roods and 88 square feet,
dtuate along the Somerset-road In Cape Town,
part of the land granted oa the 2nd July,
1766 and 8th April, 1801, as aforesaid.
The following opposing affidavit was filed :
We, Pieter Jacobus Boonsaier and Goris
Boonsaier, farmers, of Hont Bay Vlei, Hout Bay,
make oath and My :
1. That on the twelfth instant a rule nUi was
granted by this Honourable Court, returnable
on the twenty-second instant, Mlling upon the
GovBOUBfiil uid All parties cowmmtd ho thorn
«■» why the prayer o£ eertain petitionera
ihoiild not be granted, for authority to the Regis-
tnu- of Deeds to allow iraosf er by the Consistory
of Ihe Dutoh Beformed Churoh, Gape Town, to
the Hqgneaot Memorial Committee of a certain
pottina of the land granted to the said ohureh,
is the years I7M» and 1801 for horial purposes,
neh land being no lunger used for such purpose,
ssd it beiagdceirable that it shonld be dealt with
as proposed, and the purchase price applied for
thelQrtheranoe of the ol^cclsof the said church.
t Thst until 1886 the cemetery, of which the
nidgroond forma a portum, was used for burial
SL Thst from the oommencement of the present
Mutaiy, the said cemetery has been the lust rest-
isg-phMe of manj men whose memory is still
ifvcnd throughout South Africa, and of whom
we msy, without inridious reflection, he per-
ailted to name Sir Andries Truter, Chief Justice
of the former Council of Justice, John Pringle,
•sd J. Barnard, Secretary to the Goremment.
4. That in the said portion of the said ceme-
tery* proposed to be alienated, there is an allot-
BMst which was sold by the said church to and
poffchssed by our late mother, Susanna Rebekka
Onmdeler, widow of Willem Court Boonaaier,
on or sbout the 10th Februsry, 1868, for the sum
^ Ai 13s. 9d. ; the title thereof is attached as
Asaezure A.
6. That thereby all right to the said allotment
bieame vested in the said Susanna Bel)ekka
Gnmdeler, and the Consistory renounced its pro-
perty therein and its rights thereto.
^ Thst our father, Willem Court Boonsaier,
€Qr mother, Susanna Kebekka Onmdeler and
niter, ApoUonia Boonsaier, hare been buried in
the Bsid allotment.
7. That we, as heirs to our mother, are entitled
toahsres in the said allotment^ and neither our
Biother nor ourselves at any time sold, disposed,
or m any other way parted with our rights
tiwrato.
8. That we ol^jeet to any dealing with the said
enseteiy, without our consent which would be
isoQOBisteot with cmr rights in the allotment
Bfrteisid, and we respectfully beg that this
HoBoerable Court will protect our rights, and
tte of all others interested in the said ceme-
tery by refusing to grant any such order as is
vkcd by the said consistory.
[Anaexure A referred to in above affidavit con-
tttssd inUr aim the following :
The nidersigned church master (kerk meester),
fUer of the congregation of the Dutch Beformed
Cfairch in Cape Town, Cape of Good Hope,
^ suthorised thereto by the reverend con-
ailQiy of said congregation, doth hereby
declare to have sold to Mrs. Susanna Behekka
Gnmdeler, widow of Willem Court Boonsaier,
for the sum of sixty-two ryksdollars and fti|ur
schUlings (or £4 18s. M.). and therefore doth
hereby cede and transfer to her in full ptoperty
a piece of ground situata in the outer cemetery
of said congregation, in length twelve feet and
in breadth ten feet, Bhynlands measvrs, in
order to erect a vaults and subject to the follow-
ing conditions, to wit : The vault to he erected
shall be marked No. 8il, it shall not be higher
ths[n six feet, Bhynlands measure, abova the
sur^ce of the ground of said cemetery.
The proprietor shall erect the vault at his
own costs, the repairs and other necessaries
shall be done by him, as is customary to be done
to vaults. Under the aforegc^ng conditions
the Consistory aforessid renounces all right and
title thereto.l
There were also several afllidavits (to the same
general effect as Messrs. Boonsaaiers) by
Messrs. Hohne, De Smidt, Holm, G. H. Moller,
Bev. D. P. Faure and Mrs. Marquard, the
several deponents being either blood relations or
connections of original lot holders. There wjas
also a petition to the Consistory signed by 276
such blood relations or heirs (of whom, how-
ever, a large number subsequently withdrew
their objections) protesting against the pro-
posed sale.
To these objections and affidavits the Con-
sistory filed an answering affidavit alleging
that Holm had no right to his plot, as he had
failed to comply with the condition of title by
building a vault and alleging as to the lots
claimed by De Smidt, Moller, and others that
the vaults had got into a bad state of repftir
and had been neglected by the deponents ; and
saying int^ alia, • • • .
9. That the Consistory have not recognised the
claims of heirs or deicendants of an original
allottee as having any suoceesion to the plot or
vault unless registration of such succession has
been effected with the Consistory, and we annex
hereto an instance of such registration in con-
nection with a certain lot numbered 186.
10. That we crave leave to direct the attention
of this Honoorable Court to the fact that the
area affected by the petition herein contains
over 112 plots, that the rule niH has been duly
published as ordered, and only six out of such
112 plots are affected by the affidavits filed in
opposition to the said rule, and that in respect
of two out of such six plots affidavits hava bean
made in support of the said petition by descen-
dants of the original iillottees.
11. That we respectfully refer this Honour-
able Court to the statement contained in our
petition, .pnd especially to paragraph 16thacaof»
8
wherein we expreei the wiUingoeee of the Oon-
BUtory to sbtde by the terms of their letter to
the Hononrable the Beoretsry of Agriculture
ooDBtitutiDg auoezure to the Mid petition, and
wherein the Oonsutory undertake the respon-
sibility of satisfying parties holding plot^s on
the gronnd. either by burying the bones deeper
than they are now or by removing them to
Mowbray or Maitland as may be desired.
IS. That we annex hereto the oorrespondenoe
whieh has passed since the issue of the rule
nwi, together with a list of the names of
original allottees of plots in the area affected
by our petition.
From the oorrespondenoe put in at the hearing
of the petition, it appeared that on the 15th
September, 189C, the Consistory wrote the follow-
ing letter to the Secretary for Agriculture :
The Consistory of the Dutch Reformed Church,
Gape Town, have resolved to sell, in lots, their
present and unused cemetery situate in Somerset-
road.
The title deeds of the said cemetery were ob-
tained from Government as a free grant, for use
as burial ground (Begraafplaats) by resolution
passed at the Oastle on the Slst January, 1766.
The title deeds were respectively dated :
2nd July. 1756, by Governor Tulbagh.
8th April, 1801. by Sir George Yonge.
9th February, i802, by Gen. Francis Dundas.
The Consistory have already sold a portion to
the Hnguenot Memorial Committee, appointed
by the Synod of the Dutch Reformed Church of
South Africa, for the purpose of erecting a
Memorial building thereon, for the use of Syno-
dical meetifigs and other objects.
They, the Consistory, have applied to the Regis-
trar of Deeds for his sanction, to allow them to
pass a free Deed of Transfer to the s«id
Huguenot Memorial Committee on behalf of the
Synod of the Dutch Reformed Church. He is
quite prepared to allow this transfer, and any
other of further sales to be passed, provided the
said consistory can obtain from the Honourable
the Commissioner of Crown Lands, a similar
letter to the one addressed to the Consistory on
the 12th April. 1878, with the proviso that there
shall be no restriction on the use of the proceeds,
and 'which letter is filed with the Registrar of
Deeds in connection with a sale of ground,
effected by the Dutch Reformed Church, granted
to them by Government for similar purposes as
the above grant on the 26th February, 1880.
The Consistory do hereby respectfully request
of you, that you will give your consent to the
transfer by the Registrar of said gronnd to the
Huguenot Memorial Committee, and other
transf^ of above-mentioned ground to other
pnrehasers. As- the Consistory have already [
provided a new oemeteiy at Mowbray, and
further provisions having been made by Govern-
ment for a general cemetery at Maitland, the^
request that the stipulation contained in the
above-mentioned letter of 12th April, 1876, be no
altered that the fund^ derived from these sales
may be used for church purposes, instead of
specially for the purpose of a cemetery.
The Consistory hereby undertake the respon-
sibility of satisfying parties holding plots
on the ground, either by burying the bones
deeper than they are now or by removing them
to Maitland as may be desired. Care will
however be taken that all bones shall be buried
four feet below the surface before any buildings
will be allowed to be erected.
The Consistory wish to bring to your notice
that since the closing of the cemetery in
Somerset-road in 1886 by Act of Parliament it
has ceased to be used as a burial place. Con-
sequently a considerable annual expenditure is
necessitated to keep it in order, as with a very
few exceptions nothing is done to it by the
relatives of those buried there. A few years
ago the Consistory expended no less than £900
in putting the cemetery in decent order, and
they very much fear that at no distant date
they will be obliged to expend a similar amount
upon vaults, walls and monuments, which are
rapidly falling into decay. We trust you will
as soon as it is convenient accede to oar
request, as the Synodical Committee of the
Huguenot Memorial are anxious to have the
building completed before the next session of
the Synodical Assembly, which has been fixed
for October, 1897, and therefore have no time to
lose.
To this the Secretary for Agriculture replied
on the 31st October, expressing regret that the
Government could not grant the consent asked
for, **the Governor having no power to alter the
terms of the grants under which land is held.'*
The Consistory were, however, advised to
petition the Supreme Court for leave to cell ;
and it was stated that '* the Government has
no objection to such application being made.*'
After further correspondence, the Government
addressed a letter to the Consistory to the follow-
ing ef^ectt on the 80th December, 1896 :
Mr. Faure, the Secretary for Agriculture, has
given careful consideration to the letter in ques-
tion (from the Consistory, dated 18th December),
and he thinks that the feeling of disappoint-
ment given expression to, is due not to anj
change of attitude on his part, but to the fact
which was stated in my letter of the 14th instant^
that the Consistory had undertaken the respon-
sibility of satisfying parties holding plots of
ground in that cemetery, and which he founid
the GoDsistoiy were unable to do, for he reoeived
objections to the proposed alienation from all
qDart.*rB.
With regard to the deputation which waited
open Mr, Faore, he desires me to say he con-
siders that anybody who has relations buried in
soy portion of the cemetery is interested in the
alienation of any portion ol it.
Mr. Faure does not think there is any neces-
sity to disclose the names of the deputation
ibrottgh whom the case of the objection was
represented, as it will be seen when the case
comes into court, whether the objectors have
iny interest in the ground or not.
The Consistory replied on the 6th January,
poinUng out that in the petition to the Supreme
Coort,the Consistory still adhered to the under-
taking contained in their letter of the 13th
September, and expressing surprise at the
Goreinment joining in the case in opposition to
tlie petition.
Mr. Innes, Q.C., applied to make the rule
abfiolnte.
Mr. Shell, Acting Attorney-General (with
Mm Mr. Bisaet), for the Government;
Before addressing myself to the legal question
inyolved in this case, I may briefly explain the
position which the Government has taken up in
this matter. When application was made by
the Consistory in thier letter of the iSth
September last for leave to sell the land, the
Secretary for Agriculture wrot« on the Slst
October, pointing out to the Consistory that the
GoTcrnorhad no power to alter the terms of tho
jnnt and that consequently the required con-
«nt could not be given, at the same time
Wffiwting that the Supreme Court might bo
approached and that the Government would
have no objection to such a course.
The Government was not then aware that an v
oppefition would be raised to the proposed
alienition, more especially bearing in mind the
Jtatement contained in the letter of the 13th
ft«ptemW, that the claims of all interested
^rties would be satisfied. Subsequently,
however, on the 10th December an influential
«€paUtion waited upon the Minister for Agri-
^m and offered strong opposition to the
Proposed sale.
Tlw MioiBter for Agriculture then wrote, on
Wie Uth December, to the Consistory pointing
«L!?^./° ^*^ ^^ **^® ^*^^°« opposition which
««te(l the Government could not consent to the
^ r^ '^*''- *"'^ P^Kested that Parliament
would be approached on the subject, when the
^TteA^ *^^ parties could Ijc heard and con-
Coming to the strictly legal question, the
Court will have to consider and decide two
points :
1st. Whether the land in question can be
alienated, and if that question is answered in
the affirmative, then the
2nd. Question arises as to what purposes the
money realised by the sale should be devoted.
It is a clear principle that a grant. like a will
or testament, will not be lightly interfered with
by the Court if the intention of the grantor be
clear. In other words, the Court will give elfect
to the intention of the parties.
If the grants in the present case are looked at
it will be found that they are perfectly clear in
their terms.
In the first grants dated 2nd July, 1756, the
land is granted to the deaconry as a burial place
or churchyard for the inhabitants of Cape
Town, and in;the second grant, dated 8th April,
1801, the land is granted to the Venerable
College of Churchwardens for the purpose of
enlai-ging the local cemetery, i.e., the cemetery
granted in 1755, so that both these grants stand
on the same footing. The land was granted for
the inhabitants of the Cape, not for the hemfit
of tmy particular denomlnatimi, but generally
for the burial of the inhabitants of the Cape.
The Deaconry in the one case, and the College
of Churchwardem in the other, are appointed
trustees of the land granted for the public of
Cape Town, and without the consent of the
public, or at least of the Crown, the land cannot
be sold.
The law is clear that the subject matter of
grants from the Crofvn can only bo devoted tp
the purposes expressed in the grant. Blacksto)ie
(Vol. II., p. 464).
Here the terms of the grants are clear, there
is no ambiguity, and the attempt which is now
being made to devote the subject matter of the
grants to other purposes cannot be authorised
by the Court.
But even if the laud were allowed to be sold,
the Consistory has no right to the uroceeds of
the sale. The land was impressed with a trust
for the benefit of the people of Cape Town, and
not merely for members of the D. R. Church,
and any money derived from the sal a of the
land, if it conld be authorised, must be devoted
to public purposes.
The grants were not for charitable purposes ;
if they had been, and the object of the charity
had failed, the Court might possibly apply a
doctrine somewhat similar to the cy-prii doc-
trine of the English law and devote the proceeds
of the sale to similar charities.
But no question of charity arises in this case,
the only persons beneficially entitled are the
io
public of Gape Town, for whose benefit tke pro-
ceedfi of the sale, if it is allowed, must be de-
voted.
A further point might be taken that the useb
for which the land was granted haviuK been
exhausted the land reverts to the Crown.
Mr. Schreiner, Q.G., argued for the respon-
dents : The consistory as holding under a trust
has interests in the burial ground, but only as
under a trust — but the public and the 112
allottees holding sub-titles have also rights.
Here we have a large number of titles granted
by the Consistory holding good as between the
Consistor}' and the grantees. No regiBtration it
is true has been affected, but the present appli-
cation is a complete disregard of that right
under these sub-titles, for the right has passed
out of the Consistory to the allottees, so far as
regards the plots granted thereunder. The
Consistory denies the rights under these sub-
titles, yet especially alleged in its affidaWts that
it claimed payments from the allottees in 1891
as owners of the allotments. The Consistory
has purported to sell the plots, the titles have
noj^ been registered, but though this might be
good as against third parties who buy without
knowledge, it is not required as regardc the
grantor, i,e* the Consistory. A jv4 in re was uot
passed, but hjut ad rent has passed, and we are
right in coming to protect such right now.
The old doctrine of non-alienability of such
property as this has ceased. Sec Cape 2bfi>n
DutricU Watei'war\» Co, v. Elders (8 Juta,
9); Va/n Leeunen (Commentaries, section 13,
Book II., Chapter I.) ; Gratint (2, 1, 37) ; Van
Leeufven (Roman-Dutch law 2, 1, 9); Digest
(11,7,89); Cod^(%,^\, 14); 6Vn<jtf (Restraints
on Alienation, page^ 114 and 122, Webbers
Translation) ; Voet (11, 7, 6). The rights of the
purchasers are not only those of future burial,
for of course as the cemetery has been closed,
this part of their right has ceased. Bat they
have the right to the due respect and veneration
of the bones of their ancestors and to the non-
disturbance thereof. Moreover, even if the
Consistory could sell, they could not use the
proceeds by putting them into the common
church funds. It is interesting to note that
Bureau-street was constituted out of a Dutch
Reformed grave yard, against the will of the
then consistory.
Mr. Innes, Q.C., for the Consistory: It is
interesting to see that out of the 112 plotholders
only five are now before the Court. What were
the legal rights of these allottees I Surely the
Oonsistory never parted with dominium but only
gave a sort of servitude, viz., of building vaults
and buiying. . . . But of the five plot
daimars only one actually bought land, ike
others represent in the second or third degree
previous plot buyers— as to whose disposition of.
their rights by will, &c., there is no evidence.
All that counsel for the objectors contends for,
is practically that the holders have a right that
the bones of their relations shall not be
desecrated. Elder's ease cited by him ahowa
that such land can be alienated, not desecrated.
Is this alienation to the Huguenot Memorial
Committee a desecration? The place has been
in a disgraceful condition, and there may be
desecration by omission as well as com mission*
Kvery thing at the cemetery was in a miserable
state, and two of these very objectors refused to
pay 15s. to make things seemly and orderly. If
we proceed to desecrate we can be stopped, but
the use to which the ground is to be put by the
Huguenot Memorial Committee is a de<sent,
seemly and orderly one. The Court has diacre-
tion.
The Chief Justice : Suppose one of the plot
owners wished to erect a handsome monument
as a memorial of an ancestor. Can you atop
him, for the Consistory has gone through every
stage to give dominiuni except registration 1
Or could you pull down a handsome vault
architecturally beautiful, if any such now exit^t 7
Mr. Innes : No, but the vaults are in a tumble-
down condition.
The Chief Justice : Then your action would
properly be one for a declaration of forfeiture
on the ground of failure to keep the ground in
proper condition.
Mr. Innes : Who could be sued : who would
luive the right ? But the real point is the dese-
cration. It is diiiicult to understand the position
of the Qovernment. We applied for their
consent, then the Government had no objection.
Now they have joined with the objectors.
The rule was discharged with costs.
De Yilliers, C. J. : I quite agree with the
applicant's counsel that it is a greater desecra-
tion of the dead to alio 7 their tombs to go to
rack and ruin, than to build over them a
memorial such as the one proposed. Some of
the tombs in the burial ground have certainly
been much neglected by the relatives of those
buried there, and it does surprise me that
persons who have taken so little interest in the
proper maintenance of these sepulchres, should
now object to the alienation of the land for the
purpose of building thereon the Huguenot
Memorial. The question, however, which the
Court has to deal with, is one of law and not of
sentiment. In the face of the objectiona raised
by purchasera this Court has, in my opinion, no
power to authorise the alienation of the land,
even for so praiseworthy an object as the
erection of a H uguenot Memorial. The forms of
11
Irftosferto the different allotteeei have been put
in. Income the power is given to the applicants
to declare forfeit the right to the land if the
vAults built thereon should be allowed to
become ruiooua, ))ut I iucline to the opinion
tnat this power can only bt- exerciFed with the
aid of a Court of law. There ia no application
in the preeent case for a forfeiture of any of the
allotments in this ground, because vaults erected
therein have become dilapidated. In the other
foruiR transfer of the land is unconditional,
and with the exception of registration in the
Deeds Office, everything has been done by the
Consistory to veet the ownership in the allottees.
It is true that the purpose for which the land is
transferred is stated to be the burial of the
dead, but that is the purpose stated in the
errant to the Consistor}' itself. In all the
transfers put in, it is stated that vaults will Ije
erected f jr the burial of the dead. These vaults
belong to the persons who built thena, or their
heirs. They have the right to place any
monuments there, and of this right they would
be deprived if the memorial buildings were
were now allowed to be erected on the ground.
The Court cannot sanction such an interference
with right-; solemnly transferred to indiviJualj}
for valuable consideration. The absence of
rejpstration in the Deeds Oilice does not nH<>igt
the applicants. If they had transferred the
land for value to a third party, who ha^ ro
notice of the prior sale and allotment to the
owners of the vaalt«, such third party would
have had a prior claim over the allottees. But
as between the Consistory and the allottees the
want of registration makes no difference.
There still remains the further difficulty that
the Government* the original grantor of the
land— objects to the proposed alienation. The
grant of the land was made for the definite
parp se of being used as a burial ground for
the inhabitants of Gape Town. Since the dat«
of the grant the Legislature has, by section 64
of Act 4 of 1883, authorised the Governor by
pablic notice to direct that burials shall be
discontinued in any cemetery, and to alter or
vary such notice. Under that section the burial
froQDd now in question has been closed, but it
would be competent for the Governor to order
it to be reopened for purposes of burial. Xt
would, at all events, not be inconsistent with
the obiects of the Act to permit the ashes of
cremated persons to be deposited in the vaults.
The heirs of the allottees of plots of ground
would be entitled to claim that in case, after
their death, their bodies should be cremated
their asues shall be deposited in such plots. I
refer to this point merely in order to show that
the fact of the burial ground having been
closed is not conclusive in the
favour. There is no proof of such
failure of the condition on which the
granted as to apply to this case the
that the burden of tideicommm^im is
guished upon failure of the condition on which
it was created (To/?/, 36, 1, 6)). The burial
ground is closed but it may at any time be
reopened by order of the Governor, and even if
it should not be fo reopened the heirs of the
allottees are still entitled to a modified use of
the land. It is imposf^ible, therefore, to hold
that the applicants can claim the right to
alienate the land for other purposes than bunal,
without the consent of the grantor by whom the
condition was imposed that it shall only be
used for purposes of burial. On every ground,
therefore, the rule granted in this case must be
discharged with costs.
Mr. Justice Buchanan concurred. He said :
Reduced to its barest form the principle
involved is this. This land was vested in the
Consistory of the Dutch Reformed Chnrch.
They have sold portions of this land and re-
ceived money for it. They now propose to re-sell
some of the property to other people, and take
more money for it. But the persons to whom
they first sold it come and object, and in view of
these objection 4 the Court cannot set the
rights of these people aside.
Mr. Justice Maasdorp concnrred.
[Applicants' Attorney, C. C. Silberbaner:
Attorneys for the Government, Messrs. Reid &
Nephew ; Respondents' Attorney, V. A. van der
Byl.]
SUPREME COURT.
[Before the Right Hon. Sir J. H. DB ViixiBRS,
K.C.M.G. (Chief Justice), Hon. Mr. Justice
Buchanan, and Hon. Mr. Justice Maas-
dorp.]
PIRIK V. PIRIK,
J 18»7.
{Jan. 13th.
Mr. Close moved to matte absolute the mle
nm admitting applicant to sne in farmd
pay per U by edictal citation in an action against
her husband for restitution of conjngal rights,
failing which for divorce, by reason of hia
malicious desertion.
Granted ; with leave to sue by edictal cita-
tion— intendlt (short form) and notice of trial
to be served with the citation^returaable May 1 ,
Same service m the rule nUi^
12
IX THB MATTER OF TKB 1IIN0B LIZAMOEB.
Mr. Tredgold moved for the sanction
of the Court to the Bub-divitiiou of
the arable lands of the farm WelgeruBt, in tlie
district of Oudtfihoorn, of portion of wliich the
minor owns a half -share, and for the appoint-
ment of Mr. Botha as curator to represent
the minor, and to sign all necessary documents
in connection with the partition of the pasture
lands.
Granted.
BURDACK V. BURDACK.
Mr. Jones moved to make absolute the
rule tiui for dissolution of the marriage
subsisting between the parties, by reason of
respondent's failure to obey the order requiring
him to restore her conjugal rights in his wife,
and for an order giving the custody of the
minor children to applicant.
Granted.
THB PBTITION OP FAMNT L. WOLSTONB,
Mr. Tredg«ld applied for extension of the
return day of the edictal citation about to
be issued In the suit instituted by peti-
tioner against her husband for restitution of
conjugal rights, failing which for divorce, and
for further directions as to the service of the
process, and for leave to have the trial heard at
the next Oudtshoorn Circuit Court.
Extension granted to first day of Oudtshoem
Circuit Court ; service to be by publication in
the Johannesbuig "Star.*'
THE PBTITION OF LILT HABRU.
Mr. Tredgold applied for leave to sue by
edictal citation in an action against her hus-
band for restitution of conjugal rights, failing
which for divorce, by reason of his malicious
desertion.
Order granted ; returnable on February 13.
IN THB MATTBB OF THB UNION BANK.
Mr. Hchreiner, Q.C., appeared to present the
eighth report of the official liquidators as
follows : The official liquidators beg to submit
to this Honourable Court their eighth report.
Since presenting their seventh leport, the
liquidators have been able to collect the re-
mainder of the amounts due in respect of those
debtors who had arranged with the sanction of
your Honourable Court to liquidate their en-
gagements by periodical payments. Some of
these have paid off their liabilities sooner than
was expected. There is one compromise now
before your Honourable Court, but as its
acceptance appears to be in the interests of the
bank, no opposition is expected when it cotn«a
before the Court for confirmation. The only
rejaaining assets are various life |)olicie8, claims
against debtors and contrilmtories, sundry gold-
mining shares, and miscellaneous securities, of
the value of whi«h it is hardly pof^sible to form
any reliable estimate. Little good, it is felt, ia
likely to result from holding the assets men-
tioned any longer, and under the circumstanoes,
with the ultimate object of finally cIoBin#c off
the affairs of the bank and bringing the liquida-
tion to an end, it is proposed to sell them by
public auction at an early date, and an oraer of
your Honourable Court authorising this course
is now desired. When these assets have been
realised, the liquidators will be able to file a final
report and account.— Dated at Cape Town,
December 16, 1896.— G. W. Steytler (secretary
Colonial Orphan Chamber and Trust Company)
and Henry Gibson (secretary South African
▲siociation), ofiicial liquidators.
The usual order was made.
LOUWBBNB AND OTHBBB V. POTOIETBR AND
OTHERS.
For extension of the return day
of the edictol citotion until February
22 about to be issued in the suit
instituted by applicants against i-espondenta for
a declaration of rights, and for the recovery of
damages in respect of certain water rights on
the Buffels River, in the district of Oudtshooru.
Mr. Bohreiner, Q.C.and Mr. Graham appearsd
for the applicants.
The extension was granted.
IN THK IHSOLVBNT E0TATB OF TBENGOVB AND
J0X7BBBT.
Mr. Graham applied for the appoint-
ment of Messrs. A. W. Spilhaus and
P. J. de Villiers as provisional trustees
of the said estate, with power to sell
the assets and goods, being the commodities of
a general dealer, and carry en the business
pending the election of a permanent trustee or
trustees.
Application granted.
INCOBPOBATBD LAW SOCIBTY V.
LLOYD.
1897.
Jan. l.Hth.
Feb. 2nd.
Attorney — Professional misconduct —
Th eft — Suspension .
L.^ av attontPi/^ havhig heeti cnnvirUul of
the theft of £4^ traHy on the applhaiioit
13
'/ the Latr Society, nuspevdeil from
jmirfivr for a period of six months,
with If ace to him after the expirntion
of that time to petition th* Cowf
to be reAmtaied^ notice of th*^ opj/Iioi-
tion to he gicett iu the Lav !Sitciety.
This was an application for an order Ktrikiug
off ibe respondent's name from the roll of
attorneys of the Supreme Court by reason of
his professional misconduct, in that he was,
on the 3rd November last, conyioted before the
Beaident Magistrate for Graham's Town on a
charge of theft, of M by means of embezzle-
ment, and was sentenced to pay a fine of £10, or
in default to undergo six weeks' imprisonment.
Mr. Searle, Q.C., moved.
Mr. Joubert, for the respondent, applied for a
postponement until the ist February, on the
grounds of the respondent's illnees, and put in
from the bar an affidavit to that effect.
The Court expressed some doubt as to whether
the affidavit should be received, as it had not
Iwen filed with the Registrar by the respon-
dent's attorney on the preceding day in
accordance with practice.
Eventually the Court admitted the affidavit
and granted the postponement.
Poftea (February 2nd), after argument,
The Chief Justice said : The explanation is
given by Mr. Joubert in regard to the respondent
that this attorney, being in a state of
poverty and requiring money to pay his land-
lady, yielded to a temptation to appropriate
some of his client's money, and that when after-
wards his client asked him for the money he
told him that he had only received £4, whereas
as a matter of fact he had received m. He did
this in a moment of temptation, and in the state
of poverty in which he then was. Of course
this is no excuse for any person committing
theft, especially an attorney, but at the same
time I do not think that the Court ought to
visit this man with an exemplary punishment.
Th© Court will suspend him until a further
order is made, with leave to him to apply
atrain in six months, and after due notice to
the Law Society; the costs to be paid by the
respondent.
CApplicants' Attorneys, Messrs. Van Zyl k
Buiesinn^ ; Re pondent's Attorney, C. Herold.]
RBGINA V. M ARABS. \ r ^^^Jk.^
/Jan. 13th.
Evidence — Suspicion — Conviction .
Where a Magistrate hadconricted M.
ujxm eridenee which raited a strong
cafte of suspicion against him but
irhieh failed to di recti g connect him
irit/i the offence charged^ the Cmirt on
ffpjnal quashed the ronrietion.
This was an appeal from a sentence passed
upon the appellant by the Resident Magistrate,
Caledon, in a case in which the accused, D. W.
Marain, was charged with malicious deetruc-
tion of property in destroying a bluegum tree
growing at the side of hie property in Deinpers-
street, by barking the tree, which was the
property of the Caledon Municipality,
The Resident Magistrate convicted the
accused and fined him £5 or fourteen days'
imprisonment.
Against this conviction the appeal was now
brought.
From the evidence in the case before the
Resident Magistrate, it appeared that the
accused asked permission to cut down the tree
in question, but the Council refused to accede.
The Resident Magistrate in his reasons stat-ed
that though the case rested entirely on circum-
stantial evidence, it was clearly proved that the
accused was the guilty party because of the
application to be allowed to cut the tree down,
and because the bark of the tree was traced to
the yard, and that the accused's servant refused
to give the bark up to the strcetkeeper on the
ground that she would get into trouble, and
because the bark wan burnt by a child, an
inmate of the house of accused. Moreover, the
prisoner gave his evidence in a very uasatisf ac-
tor}* manner.
The servants referred to were not called,
though hearsay evidence of what they were
alleged to have said was given.
Mr. Searle, Q.C., appeared for the appellant.
Mr. Sheil, Acting Attorney -General, for the
Crown.
The Court allowed the appeal.
The Chief Justice said : The utmost that can
be said on l)ehalf of the prosecution is that the
evidence raises a case of suspicion against the
aecused. Mr. Sheil argues now that there are
two circumstances which tend to show that the
accused was guilty ; first, that a piece of bark
of a bluegumtree was found in the yard of the
accused, and secondly, the unsatisfactory
nature of the evidence given by the accused.
No attempt was made to fit in the bark, and
see whether it belonged to the tree in question.
It was said that a girl took it away, which
would rather tend to raise suspicion against
the girl, and not against the accused. Then
as to the unsatisfactory manner in which the
accused gave his evidence, we have the evidence
14
before ur, and unlera there wan Romething in
his demeanour wliich the Magistratf considered
unsatlBfaotory, the evidence itttelf BeeinR sati^s-
faatory. I aro afraid that the MaKiBtrafce was
mainly influenced by the hearsay evidence. 1 he
girl made certain statementR to one witiieBB,
and without those Btntement« I am Hatisfied tliat
the Mag1itrat« would not have found the
aocueed guilty. I underRtand that the girl wae
subpoenaed but not called. Well, the ouur of
proving the guilt lay upon the proRec-ution, and
having failed to prove that guilt, the Court
must quash the conviction.
Their lordships concurred.
[Appellant's Attorney, Paul de VillierR ]
) 1HQ7
BARTHOLOMBW V. BTABLEFOBD. j jn^ ]3^|j
Provisional sentence — Consideration —
Restraint of trade.
Prorhiowd nefitoirr ffjYntfed upon a
promt Mr rofitaine/J /// rnt agref mtntt to
jxiy a certain «nm^ although paii of
ilie ron9i(lt>ration for Hurh prominfi
iras (I rfhane by the proiuisee of tJit-
promisor from a previous^ ohligatiou
impoMivq upon the latter a jMirtml
reatrahit of trade.
This was an application for provisional
senteooe on a certain agreement or acknowledg-
ment of debt for £100, with intei*e8t from
22nd April, 1896.
Th« document on whtoh provisional sentence
was claimed was one signed by plaintiff and
defendant, which set forth that defendant owed
£78 2b. 9d. on advauces made by plaintiff on
security of certain furniture; that defendant
had undertaken for various oonBiderations not
to be concerned directly or indirectly, in any
capacity, in selling typewriting machines or
acoe?Bories in the United Kingdom or South
Africa (except with the Yost Company) or to
take part in any school of shorthand or type-
writing in Cape Town, Durban or Johannesburg,
without the consent of plaintiff, under a
penalty of £u'.10 ; that plaintiff releascR defen-
dant from the latter restriction.
Further the document stated t^at defendant
was indebted to plaintiff in respect of certain
matters arising out of the management by the
defendant of the plaintiff's business in respect
of which the plaintiff had agreed to release
defendant to the extent of claims which had
coQie to plaintiff's knowledge.
The document proceeded : Therefore the said
parties <lo hereby, eon tract, nnd agree with eacli
other ill manner following:
1. It is agreed that the paid Bartholomew
shall remain in Mndisturbvd possession of the
aforesaid furniture until the 31st day of March
next, whether bfllance due in respect thereof he
paid before that <Iate or not. the said Bartholo-
mew paying in advanre to the said Staldefon!
the rent for the said period which the faiil
Stahleford hereby noknowle<lgis to have
leceived.
2. The said Bartholomew hereby releases the
said Stahleford from such portion of tlie snicl
recite<l agreements as prohibits him from
being engaged or occupied, either directly or
indirect I}', in any capacity whatever in or
connected with any person or firm except the
'* Yost Typewriter Company (Limited) " dealing
in or selling typewriting machines or any like
contrivance within Great Britain and Ireland
or South Africa, or taking part in any school
of typewriting in Cape Town, Durban or
Johannesburg, without ftist obtaining the
written permission of the said Bartholomew.
It is further understood and agree<l tiiat the
release hereby given shall not t)c taken to
cancel or affect any other portion of the Raid
recited agreements otherwise than to the
extent of releasing the said Stablefoni in
respect of certain of the restrictiouR in the
third condition of the said agreement of the
1st day of May, 189.\
8. In consideration of the premises the said
Stahleford hereby undertakes and promises to
pay to the said Bartholomew the sum of £100.
in security whereof the said Bartholomew
agrees to accept a certain promissorj' note for
£100 dated the 22nd of April, 1895, signed Ly
one Alfred Cadman to and in favour of the
said William Stahleford, or order, and falling
due on the 22nd April, ]89().
4. On payment of the said sum of £100 the
said Bartholomew agrees to credit £50 thereof
t« the said Stahleford on account of his indeltted-
ness in respect of the said sum of £78 26. 9d.,
and the balance of £o) to the credit of the sum
of £100 to be paid as aforesaid.
6. The said Stahleford agrees to execute and
deliver to the said Bartholomew in payment of
the balance of the said sum of £100 two
promissory notes in his favour, each for the
sum of £25, falling due at nine months and
twelve months respectively from the date
hereof.
6. The said Benjamin Bartholomew hereby
discharges the said Stahleford in respect of all
other transactions between them in eofar as the
same have been disclosed by the said Stahleford,
15
»teiigiui(lerBtood and agreed further that thia
•ttlemeit doe« aot affect or prejudice any claim
otttwsaid BartHolomew, in respect of such
Mtten as have not been diecloeed to him or
^rooghttohis notice Ijy the said Stableford.
7. TbftbalHnee remaining du*3 on the debt for
wbich the aaid f urnitnre is pledged, namely,
£ffi2B.9d., vhe said Stableford agreee to pay on
the3l8td»yof Marc^, J 896.
8. Should the said Stableford make defaults
IB paymenU oi any of the promissory notes, or
debts as bereiabef ore set forth, or should he and
tht aid Alfred Cadman both fail to meet the
»i.l InVl lor i£lOJ within fourteen days after
maturity, the said Bartholomew shall be entitled
to pot into force the conditions of the said
agreement of the 23rd February, 1896.
9. The acceptance of the "aid Bartholomew of
the said draft for £1U0, shall not be taken to be
a novation of this claim against the said Stable-
ford, or prejudice him or postpone his rights
cftberwiae, than is in this agree tuent expressly
let forth.
i<X The costs of the said Bartholomew, in and
alKMit this agreement and of the aforesaid
supplementary agreement, shall be paid by the
■aid parties in equal shares.
(Sgd.) B. Babtholombw.
„ W. Stableford.
This document was dated l!Hh October, 1895.
In opposing the application for provisional
sentence on the above document the defendant
<di the following affidavit : —
1. That I have perused the summons and
annexures served upon my agent in the above
matter.
2. That I deny that there U due by me to the
l^laintiff the sum of £100, as stated in his sum-
mon.^ dated 2 1st November, 1896.
-3. That at the time I entered into the ser-
Tioe of the plaintiff I was a minor of the age of
ift years, which fact was well known to the
I»laliitifC
4. That the sum of £1(X), claimed under the
a^raement of the 19th October, 1896, was
obtained from me by the plaintiff under pres-
eore and threats of a criminal prosecution if 1
<lid not agree to the payment of the sum of
£100.
5. That the several agreements entered into
betw^een plaintiff and myself and referred to by
him in the summons and annexure are void and
of no effect^ as the same were cancelled by my
having left his employ in consequence of my
diioovering that the plaintiff was systematically
defrauding Her Majesty's Customs in his busi-
nees transactions, and to which I would not be
a party, of whioli i'^^'t I duly apprised the
IkJaJDtiff at the time.
6. That 1 do not owe any money to the
plaintiff on any furniture account,! having paid
through my agent the balance due thereon and
amounting to £36 lis. 9d. during the month of
November, 1896.
7. That I am quite prepared to defend any
action the plaintiff may bring in connection
with the amount now claimed, and have to ask
that this Honourable Court may refuse provi-
sional sentence with costs, leaving the plaintiff
to bring his action in the usual way, so that I
may be prepared to bring evidence in support
of the allegations herein contained.
Mr. Tredgold moved.
Mr. McGregor for the defendant: The docu-
ment now sued on is not u liquid document,
it was not drawn in a form on which pro-
visional sentence should be given. The appli-
cation goes far lieyond anything hitherto
decided. But even if this is not held to be so by
the Court yet the consideration is also defective.
There must be, in a document on which pro-
visional sentence is claimed an unqualified
admission of liability. But it is clear from
the document that only if those promissory
notes are not paid does the present docu-
ment sued on become payable : there is
a specific moae of payment of the original
liability provided for, via., by the hand-
ing over of the notes. Have they been handed
over : have they been paid i
The Chief Justice: But there is a clause pro-
viding that the giving of those notes shall be no
novation of the claim based on this document.
That leaves the claim unconditional.
Mr. McGregor. See Green v. Jieveridge (8
Juta, 45), which sho^s that Wessels Sc Waal
(8 Juta. 123) would not govern a case like
this. In any case the consideration is illegal,
coni<isting as it doesinthereleasefrom an agree-
ment operating as a reetraiut of trade. For
even if the time is short the prohibition, if
unreasonable in point of area, will remain
illegal : and the limit of area here is unreason-
able. See Ma»t'hii yordetifeldt (Jun Company
^.yordcnfeldt (L.U., Cb.D., 1893, page 630).
Besides, the defendant sweara there was duress :
or at least that plaintiff by his own story
hushed up the prosecution for the sake of this
doc^unent.
Mr. Tredgold for the plaintiff (the Court
intimated that it would not liearhim as to liqui-
dity, being satisfied that the document was
liquid) : The Maxim ca^e was one of a general
indefinite prohibition. But see Leath^' Cloth
Company y» LorsutU (9 Eq. Cases, 345); MotitiUon
V. IlmmUan (14 Ch. D., 351). In the pref en tease
the restraint of trade is a very mild and reason*
able one. The adequacy of a consideration will
16
not be too nicely tcrutinised. The idea of a
criminal prosecution was abandoned bIx months
before the document was sisrned.
De Villiers, C. J. The first objection is that
this is not a case for provisional sentence, inas-
much as there is no unconditional promise to
pay. The agreement says: '*En consideration
of the premises the eaid Stableford (the defen-
dant) unde-takes and promises to pay the said
Bartholomew the sum of £IC0." The premises
refer to a good many transactions covering
several jears and ending in wbat was virtually
a compromise between the parties. The promise
to pay the £100 is unconditional and the first
objection falls to the ground. Another objection
is that part of the consideration for the promise
is the release of the promisor from an obliga-
tion not to carry on a particular business for a
certain time and within a certain area. Such
an obligation, it is urged, is invalid as being in
restraint of trade, and therefore a release from
such an oblication does not constitute a consi-
deration at all. Without inquiring whether the
English cases cited as to rentraint of trade are
applicable to this colony at all, I am satisfied
that even in England such a limited restraint as
was imposed in the present case would not be
regarded as invalid. The release from the
restraint was a perfectly valid consideratioo,and
provisional sentence must therefore be granted,
with a stay of execution for one month.
Their lordships concurred.
[Plaintiff^s Attorneys, Messrs. Fairbridge,
Ardeme Sc Lawton ; Defendant's Attorney, D.
Tenuant, jun.]
SUPREME COURT.
[Before the Right Hon. Sir Hbnby pb Vil-
liers, K.C.M.G. (Chief Justice), the Hon.
Mr. Justice Buchanan, and the Hon. Mr.
Justice Maasdobp.]
BYTNBB V. COHBN.— 7ief COHBN V. f 1897.
BYTNBB. (Jan. 22nd.
Minor — Emancipation — Pnblic Trade —
Writ of arrest — Discbarge — Fraud
— Material allegation — Failure to
answer— Rule 135 — Summons.
S.,a minor, carried on huaiiiesHfor six
weeks in 1S[)5, on his own aciumnt,
and thereafter returned to his
father^s custody.
On fheJSth December, lS9fi^ H, signed
a promissory note for £50 in favour
of C, to mature on April ISth^ 1897.
In Jan., JS97j hoivever, C prwured
the arrest of S. (when about to leave
for Balawayo) ujwn an affidavit to
which was annexed the above-men-
tioned note, together with another
docnmrnf {aiso dated ISth December^
I !<9fi)^ purporting to be an agreement
by S. to pay the debt in instalments of
.4lJ a week, the w.hole amount to fall
due on default in payment of any onf
instalment. V. alleged such default
in payment. *S\, however, alleged on
affidarit that thottgh he had signed
two documents, the later one was
signed on January 15th ^ on C's re-
presentation that the promissory note
was lost, and that thitt document con-
tained no condition as to the amount
fulling due on defiult in payment nf
an instalment. These statements were
not denied by C. in his replying affi-
davits.
On application by S., the Court dis-
charged the tcrit of arrest us in con-
sequence of C's failure to answer the
material allegations ^ the Court was
not satisfied that the debt was due ojs
alleged: but {on C\v application)
authorised that the writ should stand
(IS a summons.
This wa8 an application (anticipatinfic the
return day) by Albert Kytner, under Rule 135*
for the setting aside of a writ of arrest retnm-
able on February I. The defendant was prei«ent
in custody.
The writ was granted on the followiag affi-
davit by plaintiff, dated 16th January, 1897 :
1. On the 18th day of December, 1896. Sytner
signed a promissory note in my favour for the
sum of fifty pounds sterling, payable on
the 18th day of April, 1897: hereunto annexed
marked A.
2. That on the name day he also signed an
agreement hereunto annexed marked B, by
which he undertook to pa}' the said note in
instalments of £3 per week, failing which pay-
ments the whole amount of the said note should
become due and payable at once.
1?
3b Syiaer h^» paid two iasialmeutfi in accor-
daoce with such agreement, the last of such
liSTmeots being made on the 4th day of Januans
1S97, sinoe when he ha"* paid nothing.
1 That I have been informed by defendant
sod also by his father, and I verily believe that
heiitleavingthitt colony within the next three
or four days for Bulawayo, Hhodesia, where he
intends taking up a permanent situation.
5. That as far as I am aware the said Sytner
V Doi possessed of any landed property in this
ooiooy.
6. That I have no mortgage, pledge, or other
wcarity, for the said amount as aforesaid, or
Boy part thereof, and that such amount of £44
remains therefore wholly un* ecured to me.
Annexore A, referred to in the affidavit, was
as follows :
l>iie 18th April. 1 897.
£oO
18th December, 1896.
Four months after date, I promine to pay C.
Coiien, Esq., or order at the Bank of Africa,
wspe Town, the Bum of tifty pounds sterling for
vsliie received.
(Sgd.) AUBISBT KyXNKB.
Annczure B was as follows :
I promise to pay Mr. C. Cohen the sum of £3
per week, on account of promissory note for £60,
payable na the 18th day of April, 1897, at the
Bank of Africa, Cape Town, till full amount is
paid, and should one i>ayment ije missed the
whole amount falls due at once.
(8gd.) AlBKRT iSYTKSB.
iHUi December, 18%.
The defendant filed the following answering
affidavit :—
t I admit paragraph 1 of the plaintilf' s afii-
^rit> but say, that at the time of signing the
promissory not« referred to therein, I was a
minor, of the age of 20 years, as will more fully
appear by the notarial copy of my register of
birth, hereunto annexed.
3 That I have no occupation, and reside
with my parents, and assist my father in his
hotel business, known as the Palmeraton Hotel,
Pleinstreet, Cape Town. That my parents
nipply me with Ijoard and lodging and clothing.
4. That with regard to paragraph 2 of plain-
tiff's affidavit, I say that the agreement entered
into with regard to the weekly payments of
iostflments of three pouad» sterling was not
npied by me on the 18th day of December, 1896,
but I sii^oed a document that was undated, on
FriJay the loth day of January. 1897, and that
if the said document B referred to in plaintiff's
atfidavit is now dattd. such date must have been
•ffixod after my sigaature was affixed thereto,
uid without my knowledge or consent. The
D
copy of the document B, served upon me with
the copy of the writ of arrest, has no date affixed
theret'*, but only the figures 18th.
5. That 1 have paid the said plaintiff the stun
of £9 in three instalments of £3 each par wpek,
upon a previous agreement dated 18th Decem-
ber, 1896, which said agreement did not contain
a clause to the effect that upon failure of pay-
ment of any instalments, the whole amount
should become due and payable at once.
6. That the said plaintiff, on the 15th day
of January, 1897, called upon deponent, and
stated that he had lost or mislaid the docu-
ment referred lo by me in paragraph 5 of this
my affidavit, and requested me to sign another
document, which plaintiff has refeiTed to in his
affidavit as document B, and which has been
wrongly dated as the 18th December, 1896.
7. That with regard to paragraph 3 in
plaintiff's affidavit I say, that I paid plaintiff
the sum of £3 on Wednesday, 13th January,
1897, making £9 in all that I paid him.
8. That the next instalment of £3 would
have become due and payable on Monday, I8th
January, 1897; the payment made by me on
Wednesday the 13th January, 1897, became due
and payable on Monday, 11th January, 1897,
which 1 paid to plaintiff, who accepted the
money on 13th January, 1897, as aforesaid.
9. I say again that 1 am still a minor and
have never been emancipated, and at the time
I was arrested at the imtance of the plaintiff I
did not owe the said plaintiff any money or
instalments due under the written agreement
referred to by me in paragraphs 4 and 6 of this
my affidavit.
Plaintiff in a replying affidavit re-asserted
that defendant had, as inducement to lend the
money, told plaintiff that he had an interest in
his father's hotel (the Palmerston), otherwise
he would not have lent the money. He
admitted defendant was under 21 years of age,
but stated that defendant in 1896 carried on
business with one Jacobs as advertising agents
and brokers.
There was an affidavit by Cohen's manager,
corroborating the allegation that 8ytner stated
that he was interested in the hotel ; and one by
Louis Sytner, owner of the hotel, denying that
defendant, his son, ever was interested therein.
Mr. Searle, Q.C., for the applicant: This is an
application under the 135th Rule of Court by
Sytner to anticipate the return day of a writ of
arrest. It is admitted that the applicant is a
minor ; and unless his case falls under one of
the legal exceptions, he cannot be sued — still
less be arrested— without a guardian acting in
the case. ( Vbei, 5, 1, 11 and 2, 4, 36.) Among
the exceptions recognised are emancipation of
18
s minor (#.^., by carrying on a public trade or
profession) — or his representing him&elf t-o be
of full age— or emancipated. Apparently
plaintiff reliets oq 8ytner*B being emancipated.
But the only evidence as to this is that in 1895
Hytner carried on business for six weeks away
from his father — also that the minor repre-
sented that he had on interest in his father's
hotel business. The father denies that he had
any interest or that Cohen could have thought so.
Mr. Justice Maasdorp: If he was emanci-
pated in 1895, would he lose the legal position so
acquired by coming back to his father 7
Mr. 8earle: He clearly is not carrying on
buiinees now on hi* own account. And if he has
come back to his father he cannot be said to be
now emancipated. Caimcrotsy. F^x (Buchanan,
1876, page 6.) The authorities do indeed show
that if he represeats himself as of age he is
liable ; but this is not alleged here.
The Chief Justice : But if he represents him-
self as having an interest in the business is not
the principle the same, viz., the liability for
the fraud ?
Mr. Bearle : No authoriti**s go so far as that.
Moreover, did Cohen believe it ? He carefully
avoids telling the father of the promissory note.
The •ircumstances as to the signing the last
document arn suspicious. On the previous
documents he could not have been sued; but
then he was induced to sign the last document
which enabled Cohen to arrest him — which he
did at once.
The Chief Justice: There are two material
allegations in 8ytner's affidavit which are not
denied at all in Cohen's affidavit.
Mr. McGregor for the respondent : Cohen is in
court and can give evidence on these points. As
to Sytner's position —there was clearly emanci-
Vation. The carrying on of the adver ising
business with Jacobs effected the emancipation,
and once there was emaucipation a new status
was acquired a jd can not be revoked. Of course
the mere fact of carrying om such a busini'su is
not enough : there must be a reai*onable time for
the acquisition of such new status— 0.^., such
a time that business men could make a mental
note that the minor was carrying on business.
( Voet 4, 4, 48.)
The Chief Justice said : The applicant in this
case applies now for discharge from arrest under
the 186th Rule of Coutt. The arrest was made
upon two documents, one of them being a pro-
mlBSory note, payable four months after date,
and made on December 18, 189(S, for £50. This
promisaory note will not become payable until
April 18 next, and if, therefore, this were the
only document sued upon the plaintiff would
have no right to arrest the defendant. It was
therefore of great importance for the plaintiff
to show that he had some other document under
which the defendant would be immediately
liable, and accordingly this document was pro-
duced : "I promise to pay £3 per week on ac-
count of promissory note for £50 payable ou the
18th April, 1897, at the Bank of Africa, Cape
Town, till the full an ount is paid, and should
one payment be missed the whole amount falls
due at once." This document is dated 18th
December, 1-96, but the words " 18th December,
181)6," were apparently written by somebody
else and not by the p raon who wrote the body
of the note. It is written with a
different ink, and apparently on another day.
The defendant himself says that a document
was signed by him on January 15, and he was
then informed by the plaintiff that the docu-
ment which had been given him on December
18 was lost, and that in the document he then
signed the. words *' and if one payment be naisied
the whole amount falls due at onoe " had been
omitted. That affidavit was made on January
19, 1897. On January 22 the plaintiff made an
affidavit, and he says not one word aboai this
most important statement made by the
defendant in his affidavit. Now counsel pro-
poses, on behalf of the plaintiff, to call him as
a witness. I think it is too late. Me had
ample opportunity to answer this most
material statement, and he has omitteo to do
BO. The liberty of the subject is at stake, and
it is not the habit of the Court under circum-
stances like the present to give further facilities
to a plaintiff of denying statements made by
the defendant. I think on that ground alone
the defendant ought to be discharged. There is
no proof that there is a rebuttal of the etnte-
ment that no debt was due. It becomea un-
necessary therefore to consider whether there
is further proof of emancipation, but the
evidence on the point is extremely slight It is
said that for six weeks the defendant had
carried on the business oC an advertising agent
and broker. Well, Mr. McGregor is bound to
admit that the mere fact that he has carriea on
such a business would not be sufficient to eman-
cipate him. Supposing he had been empioyed
for a day that would certainly not be sufficient
to emancipate bim. Sytner wps only employed
for six weeks. The Court should be very careful
to require full proof of emancipation before it
holds that there has been such emancipation,
and I am not prepared to say in this case that
the proof has been sufficient. But, in the
absence of proof that any debt is due, I think
that the application for the diioharge from
arrest ought to be gi-anted with coatp, the writ
to stand as a summons in any freah case.
19
Mr. Joitiee Bucbant%u eoQCurred. He wished
tDDfation that the Registrar was perfectly
iptiiied under the ciroumftanceB iu issuiog the
writ.
M .Jwtioe Maaadorp concurred.
[Plaintiri attorney. A. Steer ; Dcfendant'B
Attfiney, D. Tennant« jun.]
SUPREME COUPvT.
1 Befwe the Right Hon. Sir J. H. DK ViLLlERS,
K.C.M.G. (Chief Jnnticf), Hon. Mr. Justice
BCCHASAN, and Hon. Mr. Justice .\rAAB-
ADMI88ION.
« 1897.
i Feb. iKt.
On the application of Mr. BeDJainio, Mr.
ArihnT Plantag<'net Keneal)' was R(linitte«l as
aa attorney ami notary.
PROVISIONAL ROLL.
arooniBAD, plant and cx). v. pbdkrbbn and
ANOTHKB.
Mr. Cloee applied for provieiooal penteooe for
£S3 lAi. on a promiFsory note.
Granted.
8TANDABD BANK T. FLANDBRfl.
Mr. Innes, Q.G.« applied for provisional sen-
on a bill of exchange for illOO.
Oraated.
ILLIQTUD ROLL.
BRHABILTTATION.
On the application of Mr. Koos, the rehabili-
totioo of Daniel Johnnnes de Villierp w^b
GKNERAL MOTIONS.
BBHR y. H ABM AN.
Mr. Jones applied for judgment under the ,
319th Rnle of d nrt, in terms of the declaratioD,
for transfer of certain land in Cape Town.
Granted.
ORB V. SCOWRN.
Application by defendant for leave lo sign
judgment agaiost plaintiff for not prooeod-
iog with his action against defendant withiu the
time prescribed l>y the rules of Court.
Mr. Puchanan appeand for the applieaut.
Order granted.
IN THE MATTER OP THR PETITION OF AMY
HTTTTON, BOBN WILLIAMS.
Deed of Transfer— Amendment Sub-
stitution of *' in community " for
" without community."
The petitioner was marrieci in couiiiuinity c»f
property to, and was assisted as far an ueed be
by, Edward Hutton. hrr hui^bnnd.
Mr. Searle, Q.C., applied for authority to the
Registrar of Dee<l»i to nctify the deed of transfer
|iat»8edin favour of (letitioner on 18th Nov., 18{I6
by sulw'tituting the word "in" iMjfore "com-
inunity " in lieu of the word " without."
Ord r granted, su»«j«ct to production of patis-
factory proof from Nital that the paitiis are
married in eonnnuiiity of property.
MARNKWICKK V. SOUTH AFRICAN MniFAL LIFK
AA>URANCE SOCIETY OF CAPE TOWN.
Mr. Graham applied 'or the rule nhi
to be made al)>oIute to sue in fonnu pmiiteih
in an action for the recovery of the amount of
the life policy of applicart's wife, who died on
2Srd May last.
Application granted.
Mr. Graham ap|>ointed couupel ; Mr. P. M.
Brink to be the attorney.
GROBBBLAAU V. OOUS.
Mr. Buchanan applied fortheexteupion of the
return day of citation to May 1.
Granted.
IN THE MATTER OP THE PETITION OF KMTLR
HENRY VAN NOORDRN.
Mr. Trtdgold applied for anthority to the
Registrar of Deeds to isnue to |->etitioner a certi-
fied copy of a mortgage Ix.n ■ in his favour | anped
on 29th February, 1896, by John Go<«dison. the
original having been lost
Rule ;*/*•• granted, returnable la^^t day of
term.
IN THE MATTER OF BREDLE AND CO., IIMITED,
IN LIQUIDATION.
Mr. Buchanan pi*»sent^d the second and final
report of liquidators.
XJsual order granted.
20
IN THE ESTATE OF THE LATE ROBLOF JACOBUB
DU FLBB8IS.
Mr. Uraliai)) applied for authority to
the executor dative to sell certaiu one-
twelfth share or part of the farm De
DooroB, the only rem>«iniD|{ asset in the
eatate, and to apply the proceeds in paying
the costs of administration ; any lialance shown
in the account to be framed to Le for the l»enetit
of the eleven heirs of the said Du PlessiH.
Referred to the Master of the Supreme ('ourt
for rejwrt.
UNION BANK, IN LIQUIDATION.
Mr. Hchreiner, Q.C., appeared to present the
eighth report for confinuatioD, and for the
sanction of a certain compromiBe.
Heport confirmed and compromise sanctioned.
IN THE MATTkB OF M066 HABBIS, AN ALLEGED
LUNATIC.
Mr. McGregor applied for appointment of
a evraiir ad littm in proceedings to be taken
to have the said Harris declared of umound
mind and for the appointment of a curator of
his person and property.
Granted. Mr. Hoos appointed curator ad
litem.
MAfiTBR T. HAYUAN'S TRUBTEE.
Mr. Shell (Acting Attomey-General) applied
for an order compelling respondent to file
certain dividend receipts.
Order granted.
AITCHIfiON V. AITGHISON.
Mr. Benjamin applied to make abFohite the
rule nUi for divorce.
Personal service had been made on the de-
fendant, William Faure Aitchison. The rule
was made al)Solute, with costs.
BBGINA V. SOLDAAT.
Mr. Shell (Acting Attorney-General) applied
for removal of the place of trial to the Circuit
Court lit Uitenbage.
Order granted.
BBOOKS V. BBOOKS.
This was an action for restitution of conjugal
rights, failing which for divorce.
Mr. Jones appeared for the plaintiff.
Mr. Barry, clerk in the Colonial Office, pro-
duced the marriage regipter of the parties, dated
Pecember 6, 1883,
Mrs. Brooks (born Lidcote). the plaintiff, aaid
that she was married to the defendant in tHe
Wenleyan Church. King William *s Town, and
lived in that town for nine monthe< Uer
husband was a clothier. They went to Queen 'm
Town, where his business was, and there th^jr
stayed eight^een months very happily. H ie
business was then closed up, and he was out of
employment for some time. They wanderect
about for several years, her husband only givioK
her very little support, her family practically-
Bup])orting her. In J 892 on returning from
Mount Frere to Kiug William's Town she took
a lK)arding-hoUBe, and then in 1893 her husband
went to Bechuanaland to seek employment. He
refused to return, * nd wrote admitting miscon-
duct in the early years of marriage. The four
children were aged twelve, eleven, nine, and aix
years respectively, the eldest and youngest liein^
girls.
A decree of restitution of conjugal rights w&s
granted, defendant to return to plaintiff on or
before February 28, failing which defendant to
be called upon to show cause why a decree of
divon e should not be given against him. and
the plaintiff be entitled to tne custody of the
children
f Plaintiff 'k Atto.ueys, MeB^rs. Findlay «&
Tait.]
HAWOBTH V. HAWOBTH.
This was an action for divorce on the ground
of a uUery, or iu the alternative for a decree of
judicial separation on the ground of cruelty.
Mr. Innes, Q.C. (with^^^ Mr. M askew), for
the plaintiff.
Mr. Searle, Q.C. (with him Mr. Benjamin), for
the defendant.
Mr. Searle, Q.C, said that after consultation
with defendant he would withdraw the denial
pleade i to the charge of adultery.
Mrs. Olivier, married to Cornelius Olivier,
said that her husband was defendant's overseer,
and lived on his farm for some time, and she
went there in May, 1894, and stayed until June,
1896. They at first lived in a tent and then in a
room which was part of Haworth's house. Up
to May, 1895, there had been nothing improper
between herself and defendant. Then one
evening he sent to say that he wonld
come and speak to her about her
troubles, she having just lost a baby. Her
husbamd was then away on a three days* journey
to fetch some poles. She was writing when he
came, about 8.30 p.m.. and he behaved violently
and improperly to her, aft^r first bolting
the door l)ohind him. She gave no consent to his
action nt all. She t-aid phe would call out, and a
21
I
■uiatheiie'vt room ^rould hear, and he then
tidtbtthe woulfi m-urtlt r her if she did so.
She ni<l she would tell her hnebmiKl, and he
(imdber£2(k'iiot toBTteak. She told her hnoband
fiieuherrturne^l. and he ha«l an interview with
the tlffpii*lftnt. Slie left for a neiiehboure farm,
tad then came back, to ''etch her furniture.
Tbeynw a Jn!«tice of the Peace and aftcrwardB
■a ittorney on the ►uhject, hut »o far no action
lad been entered attain Bt Ha worth.
CroK^xamined hy Mr. Hearle. Q.C. : She was
ail! livinif with her husband. Tnere were severftl
people living in the houf^e when defendant iniR-
eondncted hiineelf as al>ove. On defendant's
birthday, after the misbehavlonr had occurred,
■he tent some TerBea to defendant. They were
pat into an envelope, and she wrote on them
** ConKratnlaUonB from K.O."
Bf the Chief Jui^tice : She and her hu^ltand
had been invited to the birthday dinner, and t hey
refneed to go, bo her husband consented to
bier »endinv ver9eB. She did not compose the
Tersee hereeif. she copied them from a book.
She was to weak that she could not resist de-
fendant snificiently to prevent him < fPecting his
pnrpoee. She bad not wished to have people
abo^t the farm knowing anything of the
matter, and had. therefore, said as litt'e about
it a£ possible.
Mary Ann Haworth, the plaintiff, said she was
to the defendant in 1869. Rhe had
nothing of miaoonduct between her hus-
band and Mrs. Olivier until after she left
Trooilap's Pan. She heard of the matter alx>ut
eis^hteen months afterwards from a total
stranger. Mr*-. Olivier she had always con-
sidered a nio^t ret»pectable, well-behaved woman.
The children (boys) were thirteen and two years
old respectively. She objected to the defend-
ant having custody of the children because of
hifl violent and improper language. Defendant's
brother Qeorge said that defendant's language on
one occasion was nearly enough to make his
hair stand on end, and also that he did not
knowr a person on earth wlio cauld
nae such bad language as his brother.
She left Trooilap's Pan a few weeks before ner
aeoond child was bom. Defendant had refused
to bring her a doctor or let her see one. If she
wrote, all letters were to go through him. He
took her to Oran^^e River Station, and went to
Kimberley. She went to Jagersfontein. and
had only £10 given by defendant. Then to
Faore:<mith where she was confined. Since
then tibe had had to support herself by drcFs-
makins? In 1884 defendant offered her £0.1 a
Tear if shw would leave hira; but she refused
mfe^s she could take the eldest child. It was
VDirue thmt she wasgpiilty of intemperate habits.
She never saw liquor at Trooilaps Pan. Her
husband had nold the property settled upon her
by the ante-uuptial contract. She Kave her
consent afterwards.
CroHB -examined by Mr. Searle, Q.C. : She and
her husband had lived a wretched life together,
two years in Natal, nine yeari* in Jagersfontein,
three years in Bosjes fan, and then in Trooi-
lap'tf Pan. She called the latter place "the
wilderness," and did not like it very much.
She ha<l not told defendant that she
wanted nothing from him when she
left him. When he gave her £10 as she left
him she said: ''Is that all I am to get
through my sickness with?" He had written
to her once from De Aar stating that he had
just heard that she was dependent on other
people for support, and was willing to take her
back or allow her some money. She did not
reply to the letter. Her husband had lost a lot
of tr.oney at Jagersfontein. It was not because
of her intemperate habits that her husband had
had to close his hotel in Natal. He bad never
spoken to her about drinking. Conf>idering that
Qeorge Haworth was always the worse for
liquor, he was not a very nice person to say that
he had seen her the worse for liquor. Her hus-
band was a very temperate man. Her husband*
had attempted'to murder her. Mrs. Olivier had
seen him come out of the room with a knife and
a steel in his hand. He had said that if he
heard her speak one word ahout him or his
family to Mrs. Olivier he would put a
knife throuorh her. Defendant had never
used violence to her in anyone else's
presence. She had a temper, but not such a
one as she was credited with. They frequently
wrote letters to each other when in the same
house. After he had ill- treated her he always
used to sit down and write to her as though she
had been the offending party, when, as a fact,
he was to blame.
Re-examined by Mr. Innes, Q.C. : Her
husband had beaten her repeatedly with a
sjambok.
Cornelis Olivier, of Britstown, said that he
was formerly overseer for the defendant, and in
May, 1895, he went to fetch some poles from a
distance. When he came back his wife com-
plained of defendant's misconduct. He told
defendant that he was going to see a magistrate,
and left the farm, taking his wife with him.
He nfierwurtlb came back to the farm to clear
up matters. He saw a J. P. on June 6, and the
J. P. told hiui to wait till a magistrate came.
He t^aw a magistrate when he came on his quar-
terly visit to the neighbourhood. He had since
seen an attorney in the matter of the mis-
conduct.
22
Croes-examined : He was now in the poliee
force. Juj»t before he came to Haworth's he
had finished a term of three years' iin prison -
luent for robbery at Victoria West. He denied
that he had wanted to ffH money out of
Haworth. Ha worth had offered him £50 to
settle the matter. Once when defendant was
coining from Kimiterley to Trooilap's Pan, he
got his wife to write for him to stop nt Brits-
town to talk o\er the matter, and had a fpy set
in the room to hear any confession that miiiht
Itemade. He had written to defendant after
that, asking him to make an offer, or he would
proceed with an action sgainpt him.
This concluded the case for the plaintiff.
For the defence, Jacob Abraham Haworth.
the defendant, said that the first cause of a
most unhappy married life was drink; Three
days after marriage he found his wife
under the influence of drink. He had a splendid
hotel business in ^ atal, and gave it up to take
her from temptation A very little drink
affected her. The things numbered in the
ante-nuptial contract settled on his wife had
fetched, about £320. He was worth about
£3,0 when he got to Jagersfonteiu, and had
put it into landed property, which depreciated
in value very considerably owing to the amalga-
mation of mines. He then to€»k a farm in the
Free State named Bosjes Pan. He had always
kept the liquor locked up there. The value for
Divisional Council purposes of the farm he now
had— Trooilap's Pan— was £6 000. It was mort-
gaged for £6,200— £',000 at 4 per Cf*nt. and
£1,200 at 10 per cent. He had 1,600 sheep, 160
cattle, and 5"^ horses. He had a partner in the
farm who found the capital. He had never
beaten his wife with a sjambok. He had never
gone further than to pick her up and lock her
in her room, when he was tired of listening to
her abuse of his dead parent. He was some-
what 1 asty and gave way to bad languajre at
times, but never very bad. He had always en-
deavoured to keep the eldest boy trom tirink.
He would like the custody of the eldest boy,
though he was willing to let his wife have the
second child. He was afraid that the present
action would place him on the verge of bank-
ruptcy. It was untrue that he had committed a
rape on Mrr^. Olivier.
The Chief Justice : But you admitted adul-
tery.
Defendant : I am the victim of one of the
most dialK)lioal plots ever enscted in this
world.
The Chief Justice : Yes I yes ! but you ad-
mitted adultery.
Defendant : I still admit it, but I did nothing
b^ force, It wa« ftH airanged, and took plaa^
at half -past ten at night, when the rest of the
people on the farm had long been in bed. Con-
tinuing, witness paid that his eldest ton wonM
never have written to his mother if he had nut
made him.
Cross-examined by Mr. lones, Q.C. : He ha<l
always kf-pt liquor in the house, but locked up.
Knowing his wife's Infirmity, he had kept the
liquor under lock and key ; though his wife
found out a means of getting at it. He had
never driven his wifti into "lessis's farm with a
sjambok. The letter which she wrote, stating
that his inhuman c ndm t was killing her. was
untrue. He had made provision on the fariu for
his wife's confinement. In addition to Tfooi-
lap's Pan. he had ono-sixth portion of two other
farm<i. He thooght the value of them was
about £500. There was a Qovemment bou4l ou
them of £3,000, which was four-fifths of their
supposed value. He had had two years drought
to face which had robbed him of a large quan-
tity of his stock. He had paid £7,305 for Trooi-
lap's Pan He wa^ willing to try and main-
tain his chil ', but not his wife. He and his
partner had frequently tried to Fell the farm
Trooilap*s Pan. He could make no offer for the
maintenance of his wife. If the costs of the
present action were heavy, he saw nothing before
him but to surrender his estate.
Re-examined : He brought his wife out from
England to marry her. In connection with the
two farms in Kenhardt, of which he had one-
sixth share, be was now owing £150 to his other
partners.
George Henry Haworth, brother of the defen-
dant, said that he knew his brother*8 flnancial
l>osition. He had no money at alS. They had
suffered from drought for the last two years.
Cross-examined: His brother paid him £:0
))er month, and he had every hope that he
would get the money. It was owing to him.
His brother must be owing him quite £30().
The Chief Justice said : In this case it is
quite clear that adultery has been committed,
and the plaiutiff is entitled to a decree of
divorce with costs. There has l>een a great deal
of mutual recrimination as to the conduct both
of plaintiff and defendant. But in the view
which the Court takes of the case it is not
necessary now to go into that. On the whole
it is better, we consider, for the interest of the
elder child that the father should ooutinue in
charge of him. The defmdant is somewhat
excitable, but independent of one single act of
adultery, the father has not shown himself
entirely unworthy to have the custody « t the
child. As to the younger child, it is better that
the mother should have the custody of it.
Defendant hm now tp make proyisiop for main*
2S
tenance, and instead of ordering a monthly or
annual payment it is far better that a lump Butii
be Daid by defendant, and in estimating that
amount the Court must bear in mind the terms
of the ante-nuptial contract in which certain
cattle and other articles hare been settled on
plaintiff. They were estimated at a very high
ralue, and there is no doubt they were after-
wards sold at very much less than the value
which waa put on them. If the plaintiff had
refused to give her consent to the Bale the Court
would hare given ju<^gment for the Cull amount,
and estimated that amount at the value which
the parties themselves put upon the goods at
the time that the contract was entered into.
The consent having been given the Court must
be guided by the amount which these articles
aetuaily realised ; and we arc of opinion that
the sum of £320 would be a fair sum to be paid
by defendant. A decree of divorce will be
granted with costs, including plaintiff's wit-
ness's ez])ensee, plaintiff to have the custody of
the younger child and defendant the eldt'r, each
to haTe access st all reasonable times and places
to each of the children. The Court will further
order that the defendant pay to plaintiff the sum
of £320.
[Plaintiff's Attorney, P. de Villiers ; Defen-
dant's Attorneys, Messrs. Van Zyl Sc Buissinn^.]
JEWKLL AKD BUTTBB V. HAZELL f 1897.
AND STKEK. j Feb. Ist.
Co-owutrs — Partners- Implied autho-
rity — Tacit lie:i -Piedj^e of title
deeds — Loau on moitgage —
Ageuts' charges.
Where land hwt hep/i trans ferrrd hy
one caul the same deed to two or more
peraonn^ one co-owner hax no implied
or tacit authority to pledf(e the trann-
fer deed an security for the charges
of a commission agent in attempting
to raise a loan on mortgage of the
land at the request of such owner
without the consent of his co-owners.
Such a commission agent has no lien on
the transfer deed for his charges or
for the projmsed lender s claim
for interest in lieu of notice in
respect of a loan which has been
negotiated hut subsequently cancelled.
This was an application by Samuel Henry
Jewell and John Robert Butter, cnlling upon
the respondents, Thomas Herbert Hazeli and
Frederick Beecher Steer (lately carrying on
business as Messrs. Hazeli k, 8teer) to show cause
why they should not be o:dered to deliver to the
applicants a certain deed of transfer of ground
situate at Salt River, the said transfer being
illegally detained by them ; and to pay the costs
of this application.
The applicants' atlidavit set forth :
1. That they together with one John Jewell
purchased from Alfred Thomas Rutter a
certain plot of ground, being Lot !» in Block £
in the estate called '* Eberstadt," situate at
Maitland near 8alt River Railway*Btatiou.
2. The selling price was £2J, and on the 9th
day of April, 1896, transfer of the i^aid lot of
ground was passed in the Deeds Office, in Cape
Town, to Samuel Heniy Jewell, John Jewell,
and John Rolwrt Rutter.
3. Bach of the partners paid his pro rata
share in the pui chase price of the ground and
expenses for passing the transfer.
4. The transfer was prepared in the ottice of
Attorney William £. Moore, and John Jewell
was entrusted by deponents with their shares of
the transfer expenses to pay for the release of
the transfer.
6. In the month of April, 1896, applicants
found out that the said John Jewell had
obtaineil the transfer and delivered it to Messrs,
Uasell & Steer, for the purpose of raising a loan
on all the shares in the transfer.
6. The transfer was demanded from Messrc.
Hazsll k. Steer, who refused to give up the same
to deponents on the ground that they had got a
loan of £350 sterling from William Marsh on
the property, which loan John Jewell had since
cancelled. That they i-etained the transfer as a
lieu for interest claimed by Marsh on his loan
and for their commissiou fur obtaining the loan.
7. The transfer was fraudulcutly and secretly
tal.eu by Jolm Jewel to Messrs. Hasell k. Steer
without the consent of deponents, and he framlu-
leutly. illegally, and without their knowledge
attempted to raise the money on the shares of
the ^)ersons mcutione i in the transfer.
5. Deponenls ^ave no written or verbal autho-
rity to the said Hazeli & Steer to raise the loan,
and have rsc ived uo satisfactory explanation
from Hazeli k Steer as to how a loan of £35U
sterling was granted by Mr. Marsh on a plot of
ground which only cost £20.
9. Deponents lastly say that John Jewell had
sold his share in the ground before he took the
transfer to the said Hazeli k Steer, to one of
the deponents, viz. to the said John Robert
Rutter.
Deponents therefore jointly and severally
pray that as the transfer aforesaid was wrongly,
unlawfully, and fraudulently put into the hands
u
of the said Hazell k Steer, they be ordered to
restore the said transfer to deponents with
costs.
The following affidavit was tiled for the re-
spondents by Frederick Beeoher 8teer, one of
the above-named respondents, and liquidator of
the late firm of liaeell Sc 8teer :
2. I l^now nothing of an arraagemont existing
between the applicants and one John Jewell
referred to in paragraph 4 of applicant's
affidavit.
3. I deny having received the deed of transfer
in question, prior to April, 1896, as stated in para-
graph 6 of applicants' affidavit, but on or a out
the 4th day of June, L81)u, John Jewell called at
the office of Hazell k Steer, and requested me
to obtain a loan of £450 upon security of cert-ain
two houses to be erected (each containing three
rooms and kitchen, &c., and oue with a shop in
addition) situate at Halt River.
4. That in accordance with these instructions
I applied to one William Marsh for such loan, as
will more fully appear from the copy of a letter
addressed to him by the said tirui, on the 5th
day of June, 18%, hereunto annexed marked A.
This application wai4 refused, but I ultimately
succeeded in obtaining a loan of £35U.
5. That on the 19th June, John Jewell again
called on me and signed a power of attorney to
pass a bond for the said amount of i^ioO (the power
of attorney is hereunto annexed) and said that
his partners, the above-named applicants, would
also call to sign the power, which, however, they
did not do.
6. That shortly after this John Jewell again
called on me, and expressed his wish to cancel
the loan of £350, to which, however, I objected,
but subsequently agreed on the distinct under-
standing that our commission for raising tht'
loan, and three months' interest in lieu of notice
be paid ; which terms he accepted, it being ex-
pressly agreed that the deed of transfer should
be retained by said Hazell & Steer as security
for such payment.
7. That I was totally unaware that the said
John Jewell was not acting perfectly bopui fide
in the matter, and that in the whole transaction
I considered him as acting for the finn, and
treated him accordingly.
8. I admit having received no written instruc-
tions from the above-named applicants to pro
cure the loan, but acted on the verbal instruc-
tions of one of the partners in the said firm of
Jewell Bros.
9. That I did not know at that time that the
said John Jewell had sold his shore in the pro-
perty, and that at the time ol this transaction
he was still apparently a partner in the said
firm.
The applicant Rulter made a replying afii-
davit saying: •'^osoon as deponent heard that
the transfer of the ground was in the handtt of
Haze?] k Steer, he went to their office and
asked if the transfer was there. He saw Mr.
F. B. Steer, who told deponeut that he had the
transfer but that he kept it b cause there was a
claim for interest and commission due. and
that he wanted also tive pounds sterling, to
transfer John Jewell's share of the giouad to
this deponent, from which statement this
deponent inferred that Steer must have heard
from John Jewell that he had sold his share to
this deponent.
On the 2dth day of Septe:nber, 1896, deponent
caused a demand to be made ol Hazell k Steer
for delivery of the transfer, and that a reply
wa< received from them on the 29th September,
1896; that no mention was made in the said
reply or at any time previously that the said
John Jewell had pledged the transfer or given
it as security for the claim of interest or com-
mission preferred by Hazell k Steer, and that
now for the first time deponent hears of such
pledge. John Jewell has left the Colony and
is not now in the jurisdiction of the Court.
The respondent Steer in a further affidavit
denied having demanded £5, as alleged, to
transfer John Jewell's share alleged to be
sold to J. U. Rutter; and said that the first
intimation be received of such sale to Rutter
was when Rutter ealied on him.
Mr. Buchanan, for the applicants: The appli-
cants' business is clearly not a partnerf hip but
a co-ownership. In spite of what the parties
call themselves in their affidavit this is clear
from the facts, e,ff, one partner went to get
transfer to himself of the part held by another
— which a co-owner u.ust, a co-partner need
not, do. A co-owner could not pledge the
shares of the other co-owners. The only
pledge was the plcdi^e of the title deed.
There is no tacit lien over the title deeds
when the express purpose of the deposit of the
deeds is to raise a loan. There is no proof ol
express agreement of lien, and the mere deposit
of the title deeds as a pledge is idle and gives
no right. Even a partner cannot bind the
co-partners unless there is an express or im-
plied authority. The parties now claiming this
transfer deed have always alleged that the
deposit was fraudulent and illegal. The
deposit was not made in the usual course of
business. It was not within the apparent
authority of the partner.
Mr. Searle, Q.C.. for the reB(X>ndents : It is
clear from the aQidavits and from the title
deed that the i)arties looked on themselves as
partners in a business ; and John Jewell could
^5
bind bk oo-pariaen aooordinglj. ( Van Leenwei^
C^as. For., PW L, Bk. IV., section 10, p. 266,
Barber's TraosUtioa.)
De Villiers, C. J •' If the respondents have the
right to retain the title deed against the will of
the majority of co-owners of the land, they
must have the right either by virtue of a special
agreement or by virtue of a tacit lien.
To prove such a special sgreement the respon-
dent Steer states in his affidavit that he has
been authorised by John Jewell, one of the
oo-ownera, to raise a loan on mortgage of the
land, that after the loan had been negotiated,
John Jewell expressed a wish to cancel the
loao, and that he (Steer) agreed to this on the
distinct understanding that he should retain the
transfer deed as a security for his commission
for raising the loan and for three months*
iattiest due to the proposed lender in lieu of
notice Assuming these statements to be correct,
the question arises whether John Jewell had
any authority from his co-owners, the two
applicants, to pledge the title deeds as security.
There is no evidence whatever of express
authority, bat the respondents* contention is
that John Jewell, as one of tiiree partners
owning the land, had tacit authority to borrow
money on security of the land and, therefore, to
give the title deeds as security for expenses in
raising the cancelled loan. It is not proved,
however, that a partnership, in the true sense of
the term, existed between the three co-owners.
The affidavits refer to them as partners, but
apparently no more is meant than that they are
co-owners of the land in question. It is unneces-
sary, therefore, to inquire into the power of one
partner to bind his co-partnen by raising money
on mortgage of land or pledging the title deeds
of such land. The nature of the partnership,
the usual course of dealing between the partners,
aad the object of the loan would be important
pomts in snch an inquiry, and the affidavits are
silent on these points. 1 am satisfied that as
oo-owner of the land John Jewell had no tacit
mandate from his co-owners to pledge the title
deeds, and that the special agreement with him
relied upon by the respondents does not justify
their retention of the transfer deed. The appli-
cants were at hand, and the respondents, before
attempting to raise money on mortgage of- the
laad« ought to have asked for a power of
sttomey signed by all the co-owners.
The next question is whether the respondents
have a tacit lien on the deed. If the deed had
been drawn by them, they would liave been
entitled to retain the deed until their lawful
charges for their work and labour had been paid
to them. The applicants would not have been
estitled U> the benefit ef the deed, without pay-
ing the professional charges for drawing the
deed. But that is not the nature of the charges,
in respect of which the respondents claim the
lien. Their commission for raising the loan and
the proposed lender's claim for interest in lieu
of notice, constitute no part of the expenses
neoei'sary to pass the transfer. Upon this point
the case of Qveen^s lown Assvranoe Company
V. Woodi» TmttM (6 Juta, 827) may usefully be
compared with Trtuteet of THtseh v. Berrange
(3 Juta, 217) If the respondents have a valid
claim against the applicants, they may bring
their action, but they are not entitled to retain
the title deeds. The application must be granted
with costs.
Their lordships concurred.
[Applicants* Attorney, J. Ayliff: Respon-
dent! ' Attorney, A. Steer.]
SUPREME COURT.
[Before the Bight Hon. Sir Hknby db Yil-
LIBBS, K.C.Bi[.G. (Chief Justice), the Hon,
Mr. Justice Bughanak, and the Hon. Mr.
Justice MAA8D0SP.]
MAHUMA V. MAHUMA.
\ 1897.
{Feb. 2nd.
This was an action for the restitution of con-
jugal rights brought by the plaintiff against his
wife.
Mr. Olose appeared for the plalntiif.
Hendrik Mahuma said he was married to his
wife in the Free State at Bethulie in 1884, each
of them having been married brfore. Plaintiif
had seven children of his first marriage, and his
wife had four by her previous marriage, but
thero were no children of the present marriage.
Witness left the Free State to come into the
Colony, and his wife refused to come with him
or to leave her children. She had also neglected
to answer his letters.
A decree of restitution of conjugal rights was
granted ; the defendant to return to plaintiff on
or before April 15, failing which a rule nUi to
be issued calling upon the defendant to show
cause on May I why a decree of divoroe should
not be granted, and the defendant be declared
to have forfeited any benefits accruing to her
by reason of having been married in community
of property; personal services to bo effected,
failing which the same publication as before.
[Plaintiff's Attorneys, Messrs. Fairbridge,
Ardeme & Lawton.]
26
BBIO V. SUBVBYOK-OBNBRAL.
1897.
Feb. 2iLd.
Feb. 10th.
Grant — Construction of — Boundary —
Diagram — ** Contiguous to " — " Ex-
tending towards " — Sea.
In the body of a grant the words
" contiguous to " were used in defiu"
ing the boundaries on three sides of
the landy but in describing the fourth,
i.e. the N.E. side, the boundary is
said to be ** to the sea,'' and on the
face of the grant th^re was an indorse^
ment, in Dutch, adjoining the diagram,
that on the N.E. side the land extends
** towards the sea " " naar de zee."
The diagram itself agreed with the
extent of land appearing in thegrcutt
and with the existing beacons which
were away from the sea, whereas if
the sea were tahen as the boundary
the extent would be greatly in excess
of the extent granted.
Held that the owner ums not entitled
to Claim from the Surveyor- General
an amended title showing the seashore
to be the boundary on the N.E. side.
This was an application on notice oalliog
upon the Surveyor-General to show cause why
he Bhould not be ordered to issue to the appli-
cant an amended litle of his property at
Simon's Town under the provisions of Act 9 of
1879.
After this notice had been served the Ifnnici-
pality served a notice on the applicant calling
upon him to show cause why they should not be
allowed to intervene.
The applicant consented to their intervening.
The facts are briefly these : The applicant is
the registered owner of three pieces of land
adjoining each other, situated at Simon's Town
and transferred to him on 13th October, I8i'2.
The total extent of the land was 4 morgen
190 square roods and 42 square feet.
In November, 1896, the land was re-surveyed,
and the surveyor, as the applicant alleged,
found that the diagrams did not truly and
correctly represent the boundaries of the land,
and thereupon an application was made to the
Surveyor-Qeneral for an amended title under
provisions of Act 9 of 1879,
The extent shown on the diagram framed by
Mr. Reid*8 surveyor exceeded the extent shown
on the original diagram by 2 morgen 69 bqoare
roods and 102 square feet.
The land in question was held under two
grants — one made to Cloete in 18 j6 and the
other to T. T. Harrington in 1818. I n Cloote'a
grant the north-east boundary was deserioed ss
being contiguous to the beach, and in Harring-
ton's grant the north-east boundary wna
described as "extending towards the aen,''
C'Mtrehkende naar de zee"}, the other boun-
daries being deeeribed aa strekkende man.
The last-mentioned grant contained the follow-
ing clause :
2hat Goremment, if tktmgkt proper, shall
have the right of erecting batteries along the
seashore, and making roads to ike monnUUns,
The applicant claimed the land to high water
mark as shown on plan A and alleged that the
portion of the estate below the road was fenced
in to the sea cm both sides, that there waa no
enoe along the northern boundary, but that
here was a fence or hedge on the north aide
of Seaf ort of which his prooerty formed portion.
The 8urveyor>General refused to issue an
amended title on the following grounda, inier
alia:
1. That he had reason to believe that Crown
land was encroached upon. and included within
the boundaries of the land as re-surveyed and
claimed by the applicant.
2. Ihat the Act 9 of 1879 waa intended toapply
to cases where the survey as per existing beacons
diifers from the diagram by which the owner
holds possession of the land, the beaoona being
undisputed and provided no Crown land is in-
cluded. That in the present case there waa no
such difference, as the diagrams attached to the
applicant's transfers represent the extent of the
land purohased by him, there being no difference
between the beacons standing and the beacons
as per diagram.
3. That the boundaries of the appUcant*a land
on the beach side are represented, according to
the original diagrams, by straight hard lines
which agree with the beacons on the ground,
and not by a curvilinear boundary as represented
by the diagram filed for the pnrpoto of obtain-
ing amended title.
4. That in the title given to T. T. Harrington
in 1818 the boundary facing the aea shore is
described as extending to {strekkende naar)
the sea, while on all otiier sices it is described
as extending oontiffuous to {strekkende aan)
Oloete's property, public road, and Goremment
land.
6. That tlie Munioipal Commissioners of
Siafton's Town, in the interest of the paUio, have
EXPLANATORY PLAN jf:
TiM kbova W-c* liiudjiffiir
b«Mf«rrad to i. A. Beid, on 1!
*" Tha dtitUd linn denote an Kdititlooal extent of land to whloh Ur. .R«i*lJ<>r8 claim Jq accoril-
tobar, 1^112, aow re-tiirve^el undvr the Ainenited Title
b Haw^nDber. 1996,
(8gd.) T. TBNNANT WATSON, G.l..a
28
rttised the strongeat opposition totheacquiBition
of the additionml 2 morgen 69 squftre roods and
1Q2 square fcM)t which would fall within appli-
cant's boundary were his application granted.
6. That in the original diagram of the larger
extent c*f the land in question (Harrington's
grant) the sea shore is not even depicted.
A previous owner of the property alleged that
he always understood and believed that the
boundary of the land did not extend to the sea,
but was limited to the beacons which still exist
on the ground, and which define the extent of
the land.
Mr. Hugo, a son of a former owner of the
property, alleged that he could recollect the
uninterrupted use of the foreshore and of the
ground now applied for by the public for a period
of at least 46 years
Mr. Hearle, Q.O., for the applicant: The whole
case turns on the construction of documents
under which Mr. Beid holds. The Surveyor-
General reads Act 9 of 1879, section 2, as if
" boundaries " meant ** beacons." The sale was a
private one, and Mr. Reid adheres to his title
deed. He did not buy on i he general plan. The
point at issue is simply — is the land claimed
Crown land ? No one but the parties to the suit
has any claim. The Burveyor-General says that
either "extending to " or *' extending towards "
is the equivalent of "strekkende naar^'* the
words used on the grant. In Harrington's case
the words were " cDutiguous to " the river. It
would be an awkward phrare to use in connec-
tion with the sea. The Court is bound by the
Dutch words used on the grant. Their proper
meaning is " stretching to " the sea. Therefore
the grant is clear, the land granted extends up
to the sea— to high-water mark. If the words
on the grant are clear the diagram is imma*
terial.
The Acting Attomey-Oeneral (Mr. Shell) for
the respondents: Apart from the question of
prescription in favour of the inhabitants of
Simon's Town raised by the Municipality, and
which would prevent the Court from deciding
the question at issue on motion, even if the
Court were of opinion that Mr. Reid had any
claim, there is sufficient evidence that the land
which Mr. Reid claims is Crown land.
The grants and diagrams both agree as to the
extent of land granted to Cloete, in 1806, and to
Harrington, in 1818, and it is common cause
that the same extent of land has in both
instances been conveyed to the applicant under
his transfers of the 13th October, 1892.
Mr. Reid now claims nearly half as much
again by virtue of the vague expressions used in
the grants ttrekkende naar in Harrington's
grant and to the beach in Cloete's grant.
«i
The primary meaning of naar is " towards,
and if it had been intended to grant f he addi-
tional land which the applicant now claims the
same language would have been employed in
describing the north-east boundary as was used
to define the boundaries on the other three sides
y\z,— ttrekkende aau^ *«., contiguous to or touch-
ing.
Barrington's case hv ver>' little application
to the present, as that case was practically
decided on the question of prescription, which
the applicant does not raise in the present
motion.
As to the right reserved by the Crown of erect-
ing batteries along the sea shoro and making
roads to the mountains, that means that the
Crown shall have the right of entering upon the
applicant's land to construct such works.
It is submitted that the Surveyor-General was
amply justified in refusing to issue an amended
title.
Mr. Searle in reply : It is important to notice
that the Government reserve the right to erect
batteries on the foreshore. This is clearly an
acknowledgment that the land is the grantee's,
subject to right to enter on it again to build
batteries.
Mr. Justice Buchanan : Strekkende aan is nsed
in every other case but this.
Mr. Searle: Tes, because "aan** would te
inappropriate hero. There is no fixed thing that
the land can extend to.
The Court, after the cane had been argued and
judgment reserved, having expressed a dcRire to
have some evidence as to when the beacons
which now define the limits of the land, were
erected, the applicant filed an affidavit sworn to
by Mr. P. K. Maskew, Government land sur-
veyor, who ilepoeed that in the year 1884 he sur-
veyed the estate Seaforth, at Simon's Town, for
the late Mr. Hugo, and found no beacons of any
description along the lower or sea side of the
property with the exception of a cleft in a rock
at the comer which Mr. Hugo pointed oat to
him.
That there were beacons along the road Bide,
and that the beacons now in existence on the
sea side were erected hy Mr. Hugo on spots
fixed by him (Mr. Maskew) as corresponding
with the original diagrams of the property.
In answer to these allegations Mr. Rittman
deposed that he was the owner and resided on
the property adjacent to that of the applicant
for the past S6 years, and that during the whole
of that time the beacons facing the sea were in
existence as at present.
Mr. Bull deposed that he was born in Simon's
Town 62 yeare ago. and that as long as he could
29
weolleet, certainly for tHe p«et 40 years, the
kuoK existed on the same spot* as they do at
pment
iW«ClOth Feliruary;).
The Court delivereil juilgiueni, making oo
onkr OQ the anpltcatiou.
DeVUUere, C. J. : Tbi» is an application call-
ing apoa the respondent to sliow cauae why he
dttU not be ordered to iesue to the applicant an
untBdei title of his land showinic the sea shore
to be the boundary on the north -east side. The
kpplicMit holds the land under three grants of
diftinct UytA, but the grant to which the dispate
m^nly relateB was made in the year 1818. On
the fac« of that i^rant there is a diagram which
corresponds with the extent of land granted and
with the beacons now standing on the land«
The beaobDB on the north-east side are some
distance from the sea. Next to the diagram
there i« an indoreement in Dutch that ''the ad-
]<4oing land refiresents a piece of land enclosing
3 morgen 221 square roodf*, extending north-
weca toCloete*s land, south-west to the public
road, south-east to Govtmment land, and
north-east towards the 9€&—{naar de tee)"
In the body of the grant appears the follow-
ing pasivase in English : " I hereby grant onto
Thomas Harrington 3 morgen and 221 square
roods. .... on the north-west contiguous
to a x>iece of land belonging to P. L. Cloete, on
th«; £4>uth-weiiit contiguous to the public road, on
tbe ^oath-east contiguouB to Qovemment land,
and on the north-east to the sea. After the
arxtuuent.< had 1>een heard, an affidavit made by
Surveyor Ma^kew was tendered to the effect
that when he surveyed the land some years ago,
there were no beacons where the existing
beacons stand. The affidavit was admitted on
condition that the respondent should be allowed
to file counter affidavits. Two such affidavits
luadf by old inhabitants have been filed, which
i^tate that for upwards of forty years beacons
have »tood in the Fame spots on this side of the
land facing the sea. It i» unnecessary now to
decide between these conflicting statements,
iKroauae the existing beacons have been recog-
nised by former owners and were pointed out to
the applicant before he bought the land. In
support fif the application the ca^e of Barring'
ttpm V. Ctfloiual GovermnetU (4 Juta, 408) has
been relied upon, but that case was very
different from tbe present. The boundaries of
the farms in qoestion were defined in the grants
as lieing "contiguous to'* certain rivers, the
dis]^rain« did not correspond with the beacons,
tod tbe beacons, if comer beaeons, included a
macb greBier extent of land than appeared in
tbep^U. In the subsequent ense of Hirsch
V. Gill (10 Juta, 156), it was held that where the
diagram attached to a deed of transfer does not
conflict with the description of the boundaries
given in the body of the deed, such diagram
affords valuable evidence as to the boundaries
of the land transferred. In the present case
there is some obscurity in the description of the
boundaries given in the grant. The words are
capable of the meaning that the boundary on
the north-east is the sea, but they are also
capable of the meaning that the boundary is
towards or in the direction of the sea. In this
uncertainty the diagram affordi valuable
evidence as to what was really intended to be
granted. That diagram corresponds exactly
with the extent of the land granted. It
corresponds also with the existing beacons which
are Rome distance from the seanhore. If the
seashore were taken to be the boundary, this
extent of land would be vastly greater than
that which was intended to be granted. This
clearly is not a case in which an amended title
should be ordered to be given by the Surveyor-
Qeneral, and the application must be refused
with costs.
Buchanan, J : I am prepared to adopt and to
apply to this case the principles laid down In
Burrinffton's ca4te, nsmely, that the grant con-
stitutes the contract between the grantor and
the grantee, and where the terms of the grant
are clear, effect must be given to those terms
even if the diagram presents a different figure
from that which the land granted in those tenns
woujd assume ; and further, that in construing
a grant of land we must look at the meaning
which the grantee was reasonably justified in
placing upon the terms of the grant. The factt)
of this case however are very different from
those proved in Barrinffton^g cate. Here the
grant and the land itself as described by the
diagram agree as to the extent. There may be
Bome ambiguity as to the meaning of the words
describing the north-east boundary, but when
these words are compared with those used in
describing the other boundaries I think they
were not intended as conveying ground right up
to the high water mark. The occupation of the
ground by the grantees themselves shows they
did not understand the seashore to )it the bound-
ary, aud the beacons placed, as some witnesses
say more than forty years ago, show that no
claim had ever before this been set up to the
boundary now claimed. Here then, we have the
grant, the diagram, the extent, the occupation,
and the beacons all against the applicant. Under
these circumstances I am of opinion that the
present application must be refused.
Maasdorp, J. concurred.
Application refused accordinglyt with costs.
89
[▲t>plieant*8 ▲ttomeyfi, MeBSK. Raid Sc
Nephew ; ReBpondent's Attoroey, Messrs. Van
Zyl A Buissinn^]
VOETUro'S KXBCUT0B8 V. ABRAHAM. I Pq{) 2Qd.
Griqua Law — Community of property.
In ati cwtiott brought by a Griqua to
recover hig tmUemal portion of a cer-
tain farm in Ch'iqualand Ea»t from
hi it father^ the question arone irhefher
according by the lair of that country ^
before itn an/nexaium to the Colony^
the law of community in'evailed be-
tween UpOUHCS,
Held on appeal, that the burthett
of proving such community lay upon
the plaintiffs anfl, tluit in the absence
of such pi'oof the Court below had
properly granted absolution from the
instance.
This was an appeal from a decision of the
Resident Magistrate, Kokstad, in an action
wherein the plaintiff, Johannes Fortuin, in his
capacity as executor testementary in the estate
of Adriana Fortuin (born Abrahams), claimed a
statement of account in the estate of the late
Francina Abrahams from Fredericic Abrahams,
her surviving spouse.
The summons alleged :
1 That plaintiff was married, without com-
munity of property, to Adriana Fortnin (lK)m
Abrahams), who has since departed thin life, and
by whom he had three children, who are all still
living.
2. That by her la^t will dated the 28th day of
October, 1886, the raid late Adriana Fortuin
appointed plaintiff the executor of her estate,
and that he has received the appointment
aecordingly.
3. That the said late Adriana Fortuin was a
daughter and heir to Francina Abrahams, who
was the predeceased spouse of defendant, and to
whom the latter was married in community of
property.
4. That the said late Francina Abrahams left
three heirs, viz.: Frederick Abrahams, jun.,
Francina Jacoba Abrahams, and Adriana Abra-
hams, plaintiff's late wife.
6. That at the death of the late Francina
Abrahams the joint estate of herself and her
husband (defendant) consisted of sundry live-
stock and the farm Driefontein, situate in
the district of Mount Currie.
6. That the said Francina Abrahams departed
this life in or abont the year 1864 or 1866.
7. That defendant has not as yet rendered »
proper account to the Master or to the heirs or
any other persons of the estate of the said
Francina Abrahams, neither has he given the
heirs proper and legal poesession of the portlona
due to them out of the said estate, neither has
he taken the necessary steps to have the said
estate administered according to law.
At the hearing before the Magistrate the
defendant set up the following pleas :
1. That an executor should be appointed (o
administer the estate who could sue and be
sued on behalf of the estate, and there is no
cause of action by plaintiff against the defen-
dants.
2. Defendant denies that the farm Drie-
fontein was the property in the joint estate of
defendant and his late wife, but says that it
was the sole and separate property of defen-
dants granted to him years after the death of
his wife, that whatever estate was left at the
death of Francina Abrahams was duly admin-
istered and distributed according to Griqna
law and custom in the year 1864, and the
shares of the heirs paid out to them in doe
course.
8. The general issue.
Upon hearing the case the Resident Magis-
trate gave judgment of absolution from the
ini^tance for the following reasons :
This is an action instituted by the plaintiiE.
Johannes Fortuin, in his capacity as executor
testamentary in the estate of his late wife
Adriana Fortuin, in which he claims a state-
ment of account in connection with the eetate
of the late Francina Abrahams, wife of defen-
dant. During the hearing of the case, it was
admitted by plaintiff that the claim in respect
of the movable property has been settled, and
the question which therefore remains to be
decided is substantially this, via., whether the
children of the lald Adriana Fortuin have an^
claim to a portion of the farm Driefontein.
Before proceeding to consider this question it
will perhaps be advisable to give a brief sum-
mary of the circumstances out of which thia
claim has arisen. It would appear that defen-
dant, a Griquaburgher, came to Bast Griqualand,
which was then commonly called Nomansland,
with his chief the late Captain Adam Kok, in or
about the year 186S, under a promise that he
would receive a grant of land. On the ai rival
of the Griquas in this part of the country, each
burgher was allowed to pick out a farm for him-
self, subject to the approval of Adam Kok
Defendant, it seems, selected the fiurm Dri
fontein, and occupied it until a few moQ
SI
after his wife's death, when he removed to the
Cctfony. PreTioTiB to his departure Adam Kok
canaed the movable property In the deceased
wile*8 estate to be apportioned Ijetween defen-
dant and his children, in accordance with what
is alleged to have been Griqua custom at the
time. After remaining away a number of years
defeodant retnmed, and again occupied the
fiarm Driefontein, and subsequently his right to
it was formally confirmed by Adam Kok in 1871.
After this (but in what year is not very clear),
plaintiff married defendant's daughter, by whom
he had three children, on whose behalf he has
now preferred this ciaim. Hubsequent to their
marriage, plaintiff and his wife were allowed by
defendant to liv on a portion of Driefontein,
where they built a houne and made other im-
provements. Eventnally the wife died, but
plainyff continued to live on the farm until
dispute? took place between him and defendant
in consequence of his objection to bear a share
of certain expenses connected with the erection
of a fence between Driefontein and an adjoin-
ing farm, the result being that he was 8um-
marily ordered by defendant to qui^. These
seem to be the facts of the case as far as can be
gathered from the evidence. A considerable
portion of the evidence was directed to one
particular question, vis., whether community of
property between spouses existed amongst the
Griqua immigrants. It is manifest that this is
the crucial point in the cafe, and the decision
mainly hinges upon the answer to it. A careful
eoBsidcration of the evidence shows that there
is coosiderable conflict between the witnesses.
On the one hand, plaintiff and his witnesjes
H. Besnidenhout and Werner state that the
principle of community both as regards mov-
able and immovable property was recognised
by the Griquas, and that when one of the
spouses died half of the joint estate was
divided between the survivor and the children of
the marriage ; on the other hand, Jan Bergover
fays only landed property was subject to
community, while it will be found that defen-
dant and his witnesses maintain the opposite
view to that advanced by plaintiff. According to
Mr. Brisley (who at one time held office among
the Griquas) community of property was not
recognised. Husband or wife oould hold I
property (either movable or immovable)
separately, and in the event of the death of
either of the spouses the property in the
deceased's estate was divided between the
ehitdren and the survivor. He states furt<her
that in the event of the death of a woman
whose husband owned landed property, the
latter was not bound to divide it with the
ohIldreB although it was a frequent thing for a
father " to create community or make divisions
of property," but there was no law to compel
him to do so. It is also dear from his evidence
that as regards farms granted to the burghers
by Adam Kok such farms were not considered
to l)e the joint property of husband and wife.
After careful consideration I am inclined to
accept the views advanced by defeudant and
his witnesees. It seems to me that the weight
of evidence is on bib side. Both Piet Bezuiden-
hout and Ludovick Kok appeared to under-
stand what they were speaking about, which
was a circumstances not ecjually manifest ia
the cape of rome of plaintiff's witoesses. For
example Jan Bergover states that when his wife
died his farm was sold and the proceeds divided
between him and bis children, but his son
Frans Bergover alleged that the farm remained
in the possession of his father who subsequently
mortgaged it, the result being that it was sold,
and the children never derived any benefit from
it. As regards the evidence given by Piet
Bezuidenhout and Ludovick Kok, I need merely
say I found no reason to doubt their bona fides.
In proceeding to give further considerations to
Mr. Brisley's evidence, I may say I attach great
importance to it ; holding as he did a somewhat
responsible position in the Griqua Government
it is in the highest degree probable that matters
subject to Griqua laws or customs frequently
came under his cognisance. In addition to this
he appears to be an intelligent man with a fatr
amount of education, and thus he wasl>etter
fitted to acquire a comprehensive knowledge of
those laws and customs than illiterate Griquas
could be expected to gain. Again, I take it that
he is a perfectly disinterested witness, and that
the deeision in this case cannot affect him
personally as it might possibly the Griqua
witnesses. For these reasons I am satisfied to
.accept his exposition of the Griqua laws and
customs which were in operation at that time in
preference to that given by Jan Bergover, or H.
Bezuidenhout, or Werner. Under these circmn*
stances 1 am forced to the condusion that
community of property as between Griqua
spouses did not exist in times anterior to the
annexation of the country by the Colonial
Government. In the course of his argument,
plaintiff' s attorney, cited the case of J, P,
Wildredfftf v. W, Kok, as supporting his conten-
tion that community did exist, but in my
opinion that ea»e if it can be said to prore any*
thing proves the opposite proposition. It is
shown there that by the advice of the then Chief
MagUtrate, William Kok ceded the half of his
farm to his wife. This ces:ion, which was sub-
sequently declared to be valid, would indicate
that Kok looked upon the farm as his exclusive
32
droperty and that it was so regarded by the
Court, which practically ratified the traosac-
tion.
The system which prevailed in respect of pro-
perty was very simple, and was one which was
adapted to the circumstances of a people who
were not in a position to keep written records
of their transactions. It would appear that
when two persons were married, the property,
whether morable or immovable, which each
posseesed previously was held separately. On
the death of one of the spouses, the movable
property of the deceased was divided between
the children and the survivor, while the landed
property was retained in the hands of the sur-
viving spouse, and occupied by him or her as
the case might be in conjunction with the
children. This is exactly what has happened in
the present case, the property belonging to the
late Abrahams was divided between her husband
and the children. Had any part of the princi-
ple of community of property between spouses
been recognised at that time, it is reasonable to
suppose that Adam Kok, who seems to have
invariably taken steps to cause moveable
property to l>e distributed, would have given
directions that a proper and lawful disposition
should at the same time be made of the
landed property. But no instances in
which he dealt with the farms granted by him
to his burghers have been cited by any of the
witnesses. This circumstance goes far to show
that the statements of Mr. Brisley and Piet
Besuidenhout, to the effect that these farms
were regarded as belonging exclusively to the
grantees, are correct.
There seem to have been a tacit understand-
ing, that any of the sons or daughters who got
married had, and have during the lifetime of
the surviving spouse, a sort of claim to settle on
the land. This claim was not however based
upon any right arising out of the estate of the
deceased parent. It is not easy to define whence
it arose, but it may be said it was derived from
good feeling on the part of the surviving parent.
Plaintiff alleges that defendant assigned a
portion of the farm Driefontein, and told him
that it was the share accruing to his wife
Adriana Foriuin out of her mother's estate.
That a part of the farm was apportioned among
bis children is not disputed by defendant, but
be explains that in allowing them to live on
the farm, he was actuated by paternal feelings
and that none of them claimed a right of
occupation by virtue of any title arising out of
their mother's estate. It may be that plaintiff
tiiought and still thinks that his wife derived
her right of occupation through her mother and
possibly the document marked A, which defen-
dant signed when the question arose in regard
to his passing a mortgage on the /arm may-
have lent some colour to this idea.
TbiB document was au undertaking signed by
defendant declaring *' that only my half-share
of the farm Driefoutein shall be liable for this
debt-, " and that should the liond be called up
" the portion belonging to my children will not
be endangered."
But in my opinion the e:£planation giveu by
defendant as to how his children came to have
a portion of the farm allotted to them is not
inconsistent with the documentary evidence
that has been adduced. Plaintiff has failed to
prove that the allotments of land given to each
of his children by defendant on tlio farm
Driefontein, can and ought to be regarded as
the portions accruing to tbem out of their
mother's estate. I accept defendant's explana-
tion of what his intentions were when he bo
apportioned his farm. What rights this pro-
ceeding on his part really conferred on his
children is not the point at issue in this action.
I am only requireu to find an answer to the
questions that have now been raised by the
pleadings.
To sum up then the conclusions I have arrived
at, I find :
1. That community of property between
spouses was not recognised by the Griquas
during Adam Kok's time.
2. That the farm Driefontein was the exclu-
sive property of defendant and that on the death
of his wife ii; did not form a part of her estate.
8. That the allotments on Driefontein given
by defendant to his children were not portions
due to them out of their mother's estate.
If these conclusions are correct then it fullows
that plaintiff is not entitled to succeed in this
acton and my judgment will therefore be
absolution from the instance with costs.
Mr. tSchreiner, Q.C., for the appellant^ referred
io Sir Per, Maitlafid's Treaty (1846); Hertlets
CoviwerckU IVeatiat, (Vol. 9 page 106);
Straelvefi v. De Vrws (6 Sheil, 381); Theal's
History of Swtth Africa (1834-1864, pages 379
et sefi. He contended that the history of the
Griquas showed that they were a Mono-
gamous people who came originally from the
Colony where they were accustomed to be
married according to christian rites. When
the people left the colony, therefore the pre-
sumption would be that (failing any {Specific
written law among such people) they took with
them the common law— including tbe gtutu*
which chrit^tian marriage in their original
society conferred; including therefore com-
munity of property on marriage. This pre-
sumption is confirmed by every other fact of
33
MlHiDrj UMt w« Ilmow. Tbere isioetiwr
^""■9601, lor tteey ^r«K« iMiC • pure lepftniie
«>^vilbd«&»e(i stt^iooal ciutMis; bal ttie
IxiVbvtiem mixed rmoe imoliidimi half cMtes,
^ Sinthmm, ▼. CM^mi^ Oovermml (11
'^ W)l TIm niAitt point ia tliM mm thate.
fcwii tedetM Ufctia iB tl»e <miertion of oommnnity.
IMtfntU the Oofirt. liolds UmU there ia no
MAowuvilty tlie diiidrcii ocHildtCill rely upon
theeoilaci l^ikiieaLQre A.) whereby the father
nMhiailg^te ms % usufraeiiuuT in regard to
DnefeaiNn. 3«0y«««av. O^ m niml OrpJUm Cham-
im(?oord,p. 48).
Mr. Senile, Q.C., for the respondent.
Ite Ooaxi dlamlBBed the appeal with ooeta.
DeTUliera, G.J. : la order to snoeeed in thia
adioa ttie pWmtiff h«d to aatiafy the Ooori
Wevlbait our Imw of eomni unity of property
enrted wnoDg the Griquna before the annex-
alion of tbelr territory to thia colony. Thia
Oavtheabeen faTOured by Mr. Sehreiner with
a very faatereatiag diaeoaaion of the history of
CMqaa people and the gradual development
lawa and eoatoma, bat ttie diaeuaalon
naeh aaaiatanee in deeldfaig
eommaaity of property between
and wife waa reeogidaad by the tribe.
anrldeBee ia reiy ecaiiieting,
now analyalikg that
liaetiae to the Tiewthata iMdiiad
emmaaity did asdat in regard to hnd,
with thia diatiaetiea, that upea the death of
of the a p e wa ai the aanrlTer remained in
•f the property aa owner of eaa half
of the remaiaing halt If thia
be correct thea the phdntiir ia not entitled
the dUbadaat'tt lifetime to claim any
«rf the property, and the Magialrate waa
Tl^btia granting abaolutlon from the inftanco,
the burthen of proving full com-
ity of property, aare<.egaiaed in thia cdoay,
tiie phdntlff, and in the afaaeaee of
proof the Magiatrate'a judgment waa
The ai^wal muat be diamiaaed with
[Appellaau* Attom^s, Memra. Van Zyl k,
^aahiii6; Reepondent'a Attomeya, Meiare.
FairfMldge, Ardeme A Lawton.]
►. f 1807.
)Feb. Sad.
[BSB T. aA. TCXBACOO 00.
AMD uumKormK.
Piatciit rigfata — ^Aastgnment — Breach of
contraet — ^Interdiet—Rale nm.
8, mUred hUo cm agreement with L.
n ienms of irhiek S. acqmred the
pateni fights im S<nUk Africa of
eeriaim c^areitm-mMng maehkm qf
S. ihtrwfUr wader a further agree-
ment ceded hie rightt under the
original agreement to H, on behalf
of the T. Co. which was to be formed
to exploit the invention in South
Africa, This second agreemeni pro^
tfided that tn consideration of payment
of certain monejf in shares, and
certain salary and percentage of the
profits, 8. should give his services to
T.) and hand over all his stoch and
machines and ass^^ his patsni and
other rights in regard to the machine
toT.
Thereqfler S. prepared all the docu-
ments necessary for patenting the
invention in South Africa, and ob^
tained execution thereof by L., and
handed them to H. for completion.
The patent in the Cape Colony urns
obtained in the name of L., but S.
alleged that this was on the distinct,
understanding that L. should assign
the patent to petitioner or his assigns,
and S. consented that such assignment
should be made to the T. Co.
S. duly handed over all his machi-
nery, and gave his services for
several months, but received no
salary or shares. On the application
ofS.,
The Court granted a rule nisi, to
operate as an interim interdict,
restraining the assignment of the
patent rights f registered in L.'b
name J by It. to T, pending action to
be instOuted by petitioner.
On the return day the rule was made
absolute (omitting the words *^ pend-
ing action to be instituted by peti-
tioner '*J9 with leave to the T. Co. to
apply to the Court for the discharge
of the interdict.
Thia was an application to make absolute a
rule nisi granted on the 15th September, 18M,
upon the motion of Mr. Innee, Q.C., retumal)le
laat day of the November term (subaequently
extended), to operate meanwhile aa an interdict,
calling upon Frank James Ludington, aad the
South AMcBU Toliacco Company, to show cause
why the former should not be interdicted from
arsigniDg hi» leiten pftUat of tiM 17th June,
189€, to the latter, or to any one oibar than
petitioner, and why the officer in charfce of the
register of patents and proprietors should not be
restrained from registering such assignment,
pending action to be instituted by the petitioner ;
rule to be served personally on Lndington and
the company, aa well as on the oflioer in charge
of the register of patents and proprietors.
Mr. Innes, Q.C., for the applicant.
Mr. Searle, Q.C., for the respondent South
African Tobacco Gompan
No appearance was entered for Lndington.
There wis no formal return of a lenrloe upon
him in terms of the order, though a formalj
declaration by him was filed tlirough the.
attorney for the iSouth African Tobaooo Com-;
pany.
The original rule nUi was obtained upon the,
patrtion of William Schreiber, of Johannesburg,
whtoh was as follows :
1, That yonr petitioner is a rasident of
Johanaesbuig, in the South Afrioan Republic,
and has been residing there einoe 1887.
3.\Tliatyour petitioner has been brought up'
in the tobacco trade. '
8. That in 1894, yonr petitioner was carrying
on business in Jdhannesbnrg with his brother
Benig Muheiber, ondar the sfyle of W. H. Duke'
&Co.
4. That of date llth October, 1894, your
petitioner, as representing the said firm of W. S.'
Duke 5c Co., entered into an agreement with
one Frank James Ludington, acting for the
Lndington Ck>mpany of New Haren, Amerioa,
whereof the original is attached . marked A,
to which yonr petitioner or avee Isare to refer.
[This agreement provided . for the sale to
petitioner's firm (W. S, Duke k Co.) of two Lud-
ington cigarette-making machines ; petitioner's
firm to get the sole right of selling these
machines in South Africa and to be entitled ta
take out a patent (in ih^ naibe ol W. 8. Duke)'
for South Africa.]
5. That the jsaid agreement was duly carried
out and completed so far as the delivery of
the machines therein mentioned was con*
cemed and as regards the payment of the
purchase pirice.
i. That the attention of this Hononrable
Court is drawn to.j»ar«graph 8 of the agree-
ment, whereby the vendors thereunder agreed to
allow the purchasers to take out a patent {or
th^ machine, therein, n^entioned in their name.
7. that subse(|^uent to' the entering into of the
said agreement and the ac^iuisition • of the
machines therein mentioned your , petitioner
approached Messrs. Hsrtlaub ic Co., of Rotterdam,
and of date 25th llovember, 189p, your petitioner
Mteiad into with tlMi the agnammt mhmnot
a aopy is kerevoto attached nMrkadB, to wliioh
yov petHMMiflr cmves leave to.i«fer,
[This was an agreement to assign to H«ri-
laub Sc Co. or their nominees all petltioaor's
rights in respect of the letters patenti *e., of
the invention ; for a consideration whiob poii*
tioner acknowledges to have received].
8. That the invention therein referred to is
the matter In respect of which by daiton 8 of
the agreement first above named it was to be
permitted to W. 8. Dnke A Co. to take oat »
patent.
9. That at this time the firm of W.S. Dake
& Ca had been dissolved under an arrangement
by which %nter alia the maehipes, rights, and
interests mentioned in the said two agree*
ments had passed to your petitioner.
10. That the Honourable Court will obaenre
that the said Frank James Ludington oon-
ourred in the agreement second abovenanied
and agreed to reoogniee the same.
[This was by an aKtoraanMait in which
Ludington aoknowMt«i that the conteMta of
the agreamant were known to him tmd s»Te
his coMacrenoa.]
IL That the agmement seeond above Mnoed
was dniy rignad bf all the parties tfaoioto,
inslndlng. the said Frank JaaMS Loiington,
aad that the origlMa Is new in Heilaad ia the
hawk e< the saM Hartianh Jfc Oo. as lepre-
sentlngthe Booth Afriean T ehasso Oonp—y of
ruhaiiniilnifg a IMflk eoaspaay hav»(g its
domioile. In Hellnsd.
13. ThiK subsequently on the Mh Dooember.
1890, there was entered hito betweeo yonr
petHhmer and the said Hartlanb & Co. meting
fisr the said eompany the agreement hereon to
atlaehed* marked C, to whidi yonr petttioner
craves leave to refer. •*
18. That this Honourable Court will observe
Ihat by the said agreement your petitioner
agreed to give his exclusive services to the said
company for a stated period at a fixed
remunerktion, as also to make over to them for
the oonsideration therein mentioned (£1,000 in
fully paid-up shares), the entirety of his plant
and stock*in-trade, including the moehlnes as
aforementioned, aa also all patents or patent
rights.
14. By such patents or patent rights there
was intended to be covered the jmrtieular
patent referred to in agreements first and second
abovemlentioned.
16. That thereafter yonr petHloner enoaed to
be prepared the papers no ee o aary for the
patenting in hja MHBe of the InveOtleB vefened
36 .
to in ttM a^reemeBtB «foreiidd, miid did ^Ufn
tlw dve exeeuHon thereof by the said Fnmk
Jamee Lwlingtoii.
JC That thereafter the 'ea!d docutbenle were
bf hlm'ilandedf over to the said Hartiaub &'Co.,
in ovder that the completion of the l^tteta
patent might be arranged.'
17. ThAt, yoqr petitioner thereafter, gave
deUToiy . to the said company through .its
manager, one Huaheer, of Johannesburg, of the
goo^sand machinery, which by the annexure
third abovementioned he had agreed to make
oner, and he attaohs hereunto the receipt of tl^
i^d manager.
in Th%t no complaint ha^ been made as to
the., weight of the tohaeeo referred to in the.
said- reeeipi, and as ooneeras the snuff mill
therein naentiffned, tlufct yoor petitioner ordered
a new part fi^ov Oennany to anpply the defec-
titepfurt.
ISl Tluit yoar petitioner also entered Into the
sarriee of the said company In terms of the
■gvaemcnt third abovementiesied, and has in
every reepaci performed his part of the agree-
M. Thnt np to the preaani, although your
pe l itlw ie s baa handed ofer. the gooos and
afoeeanid, and has signed aU
iry doeomealfl falling to be- signed by ■:
bias, yea he hath reeeived no salary whatsoever,
aadno doHrery of any sharesi
SL That yonr petitioner hath aaade repeated
appliontiOD for payment of hia salary and for
the deliTcry of his shares, but hath obtained ao^
M ti a f ne ti on whaleoover, and he hath .been
sdHeed to take aellon to leelaim the interests,
ga-de, mud maehlnery aforesaid driirered by
him cH the faith of < the honourable perfor-
manee by the said oompany of Its engage-
menlB.
fS. Tfaa^the Invention a foresa id was patented .<
in Cape Town, in this colony, in the name of the
inventor, the said James Frank V^iogton, to
whom letters patent were issued on tb^lVth June
last; that a true copy of the speoiflcatlcm, to
whieh joor petitioner craves leave to refer, is
attadied marked D.
t3L That In taking out the patent In his own
name the mid Frank James Ludington did so
on the understanding that he should assign the
ssme to your petitioner or to hie assigns.
21. That the assignment from the said
Lndlngton to the said company as the intended
asBigna of yew petitioner has not yet gone
throoili the Register of Patents, although on
the faith of the dae perfomanee by the said
esmpaay . of Its undertakings your petitioner
agreed tliat emh -asaignmept could take place.
Si. That there is reason to believe that an
attensptmay bemadeat any moment to eom-
plete the said easement on the part of the
South African Tobacco Company.
36. That by^ reason of the total failure of the
said company to cany out its obligations
towards your petitioner there is grave reason
to fear that your petitioner may lose the
whofle of his valuable property and rights
aforessfid, niilees steps be taken to attach the
same pending the institution of proceedings
with 'a View to the recovery thereof.
27. That it is highly necessary that the apsign^
ment of the Baid letters patent from the said
Ludington to the said companv should
be prevented, pending the institution
of an actkm^'by your petitioner to
re^Mnrer his property and rightp, ebe your
petitioner may be greatly Injured and suffer the
total loss thereot
28. That the said Frank James Ludington is'
at present in London, England.
UI9, That your petitioner hath no reason to
fear ooUusion as between the said Frank James
Ludington and the said oompany, but is appre-
hensive that the said Frank James Ludington
has already or is about io assign eaid letters
patent to said South African Tobacco Company
in pursuance of the arrangements aforesaid.
The petitioner prayed for a rule nm to
operate as an interdict restraining the assign-
ment of the patent rights.
The following affidavit by G. Husheer, of
Johannesburg, was filed opposing the rule nisi
being made absolute.
1. I am tbe mapager in South Africa of
respondent— The South African Tobacco Com-
pany—a company incorporated in Rotterdam
(Holland) and having there its head office.
2. That I have read tbe petition of applicant.
3. That the agreement annexed to applica}|t*s
petition and marked S, was made by applicant
with respondents.
4. That respondent started business in
Johannesburg after the necessary buildings were
completed on the 1st day of July, 1896, and
applicant entered in respondents* service at the
same time.
6. That applicant until that period was
employed in a certain tobacco business carried
on under the name of W. S. Duke Jfc Co., Com-
mlssioner-etreet, Johannesburg, in which
buslttess he had an interest^ and he often told
deponent that he would carry on his business
forsolong^
i. That as soon as the company's buildings
were completed applicant delivered to deponent
the fpaods (after vaHmtioD) specified \p thf
sUfement annexed to 4lie order of ttie Oowt and
now taken in ezeouiioB aad the said goods haTe
never been offered for delirery before.
7. That a etatement of tbcie goods has been
sent to Rotterdam, for the purpose of making up
and signing the shares, as payment for the goodn,
aooording to valuation, whioh must be made in
shares.
8. That applioant knew that payment for the
goods and maohinery to be delivered by him
ooald not be made until after valuation of same
and delivery, and that the amount had been
stated to the direotors of respondent in Rotter-
dam, that he never complained about the delay
and never asked for the shares until a month
after the valuation had been rent to Rotterdam.
9. That applioant at the time the agreement
was made was indebted to the firm of Uartlaub
k Co., for the sum of £444 17s. 6d. with interest,
for goods delivered to him, in settlement
whereof he made an agreement with the said
firm entitling it for 12 (twelve) shares at 1,000
guilders each out of the shares coming to
applicant, and empowering the said firm to
take possession of these twelve shares in Rotter-
dam, as has been done.
10. That according to contract the applicant
for the amount of £2,868 7s. 7d. was
entitled to thirty- four shares of 1,000 guilders
each at £26 10b. cash as balance for the
amount of the valuation. That after
deduction of the ten shares mentioned
in 8 hereinbefore and the twelve
shares mentioned in 7 hereinbefore there
is a balance of twelve shares and £26 lOs.
which twelve shares only came in possession of
deponent on the 21st day of September, 1896,
when applicant was absent without leave.
11. That salary for the month of July, 1898,
during which month applioant entered the
service of respondent, was offered to him in the
month of August, 1898, and at that time he for
the first time claimed salary for the previous
month, which was then refused to him.
12 That applicant remained in the service of
the respondent until the 12th day of September,
1898, and at that time left the service of the
respondent without leave.
13. That applicant before that time miseon-
dncted himself in the highest degree and was
Very impertinent towards the dep<ment ; that
during business hours he was often to be found
in the business place of W. 8. Duke & Ca, whoso
business was done under the same firm and in
the same premises as at the time the agreement
mentioned in 8 hereinbefore was entered into ;
that during business hours the applioant ordered
tools and applieanoes oelonging to the respondent
far making right oertain maohinery for the firm of
W.S.D«]B»*OosaadhMbossiwotkiiHr toMsd in
favour of tiie sftid flim of W. 8. Duke U Co.
before, during, and after tlie basinets honia of
respondent in the busincfs plaoe of the said firm,
in contravention of the agreement mentkNiod
in 8 hereinbefore.
14. Ihat on account of the laet menlioBod In
13 hereinbefore, the deponent held it that the
applioant had left the eervioe of the reepoadofet
when he went to Cape Town without leavo, mmd
respondent only later found out that api^ieMSt
hud gone to that place with the intention to
institute an action against the respondent.
16. That the deponent is willing to pay snlaiy
to the applioant at £60 per month from the lat
June, 1898; howoror, he only entered ia ttie
service of the respondent In tiie mottth of Jnly,
and to pay salaix vnlU the 18th fioptombor,
1898, about which day he left the lervioe of
respondent without leare, aad fturther to fMiy
him 4 per cent of the net profits made hjr the
respondent freoi the date of starting bnsinans
until the Uth 8eptemher» 188«, to be paid m
soon as the aoooonts have been inspeoled wad
the profits have been fooMl, whioh will bo daao
as soon as possible: payment ol salary mmd
intpeotloB of respoadent's hooks smo heww IAIa
tendered to him and paymont of 4 per oenC •!
the profits, to bo made as soon as possible nod
the jnst amount oan bo atatod.
li. That whh respeot to tha agreemosU
annexed to applicant's petitian maffked A« Hm
applioant never fulfilled the eonditlon of tida
agreementi and the same therefore beoaae mUI
and void.
17. That the applicant wont to Hottadana
and made the agreement annexed tonppUonat^a
petition, marked B, with the firm of Uartlaiih $l
Ca, and o ded all his rights to the said finu«
who is still the holder of the said richts.
18. That a portion of the documents and
oorrespondenoe relatiag to these traaflaoti«>iia
are in Rotterdam.
19. That the respondent, na soon as ho
received notice of this action and of the aotiosi
instituted at Cape Town, wrote to RoUerdam
for ihe said documents and eorrespondeaoe
and for instructions from the respondeAi's
direotors, and gave instructions to get copies of
the documents served by the respondent in
Cape Town which copies have been reoaiTed
yesterday, but the dooomenti, oorrespondenoe
and instmctions cannot be expected within »ix
Weeks at least.
20. That the respondent company never tried
nor had the intention to make away with muy
of the goods and machinery taken in exeoutloii
by the messenger, nor to make away to aell,
or to in any other mannermftke away witli
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^ViU««t
k
Wtwm y^mn of iU bari*
nlMiriK, for wjiieh be pftjg
«l&Mt tlKe resiMMMbflllMM »
in Jjhom ic i bfg •! thm
by
itk Um Cirooil Couii ttl
ft|i|iliMtioD the
Interdleft eosid toiUowtd
rttk wpf •€
him te aeoor*
mlAO ftied a deeteimtioB by Fmak
iMMmlntfaglfln, of Wolertmiy, Oonneotieal,
teth«fMl«d8taftM,liiT«i«or, m followi:
rigbta lo mpMt of Ibe •bovt*
for «1m wlMle <^ bo^th
lo ood no l o¥n bi d io llMSit.
of BoMordoH, oodar tiM foJloir*
A Mr. WftUfaw 8dttoib«r
to Iko 9Mr IW* wMi BM, iir Ihe jiUe
«o he void iir the auMbioe
rigMi iir ths Aoofth
Tko ogiwmol liulwuo oi
Mr. B d M o M u r wos to poy for two
io tfaoy«nr MM^oNhwIm Im OPooMooi
potooiriffhliw TbeioidMr.golttoiber
modilM, bol wm oooMt to poy
r, ood tile oKioeoMOt wof ot as «od.
mtn. Hoftioob k Oo.
tor o Moood ouMhioe, I ogrMd to oHow
to iMivo tho potent righte, ood I om
beliofo tbot tbe loid WiiilMi
odiotooeootHMtwitii tiM Mid
HoHloob & Co^ to Mrigo tkem tiM
rigJMto oflwoioid, wiiioh wortract Isdoled
Norember, iWf.
lod beiieTo thot Mewn.
it Oo. iMd odvoooed tbe mooey to poy
Miolnt mortiloe. I oeosidered the ogioe-
Willi Mr. Scbrelber pwraooollf ot oo eod,
I eot oi o d ioto the oew anroofeoieot wiMi
Bortloob & Co. ooder tlie above
oppHeooi's refdyiag atfidoTit set
I kore read tbe declaratioD of Frank
Iiodi«gtoo, ood In replj thereto etoto
Mo (larf fc^t co'e) etoteueot thot he eoo-
*he eoBtroet with om, dated llthOetober,
[, to ottoily defv««4 of troth, as will oppeor
toiteiw oddfeeeed to loe re epeettoely
SbtJSeptombor, 18«,aodaOlhOelober, 19M,
of whioli ooe hofoto eooeTed m o rh ed A.
Thot the toil moehioe waa pold tor by ie by
two elf ht diofte thrai«h the Afiiaao BoBbli^
Oorporotioo here io Morah. IWk thot faiiy
nioe neof the betore I had aoy traoaootloo with
the Sooth Afrieoo Tobooeo GkNopooy.
Thot the leoQod aumhioe waa paid tor w$^
aeeooat by the Booth Alrloao lobooao Ooai*
pooy Io tonoa of Hie asieeaMOt beteraeoL Hia
a«ki Sooth AfHoao Toboeeo Oompooy . ood
Myaelf, after whieh I oeded my righhi to the
Bol dDompaoy tor dl,€00 aod a thiee yearii eogage-
-■•eoti at a «dary oif dfiO per meoth ood 4 per
ee^tk of tlie oet proAte ot the oompooy.
Ue further alleged toot he hod not left the
eotopoay'i aerriee till the Siet September, IMI,
wheo he reoeived wntleo inatmetiooa from the
mapoger of the oompooy to do to ; aod deoled
hoviag had aoythtof further to do with Bohe
k Oa after eateriog T/i eerrlee except to T/e
totermi.
Thot the High Court of the Traosvool did
pot refoae the applieatioo for oor toterdlet bat
grooied it^-tboogh petitioner had to pay tlie
ooiti, as the Court held thot the Johaooeeburg
Bpeeiol JodieiolCommlmiooer who grouted the
proTleloool order hod oo power to do ao.
Mr. luoes, CO, now moved thot the rule be
omdeobflotato,
Mr. Seorle, Q.C., tor toe reapoodeot: Cleorly
oo nilo should now be gnaM to
rsatrato toe aaslgoment The applicaat ioteods
to briog ao aotloo in the Troosva*! Court for
damages f6r breach of oontraet He oould not
In tois Court get reaUutio in io^^yrwM
oolses he proves tout there has beeo ftoud or
mietoke ; nor eoo he get both the remedy here
1^ ruUtuti^ ood io the Transvaal by damages
for the breaoh.
If r. lUnes replied.
The rule was made absolute (expunging
eertoin words) with eoefs.
The Chief Jostioe soid : Upoo toe Informo-
tloo beftne tbe Court, It appeati to
be clear that toe rule should be made
abeoluto If there had been a tender on toe
port of tbe respondeote to deliver
the shores, which under the contract toay had
boood themselves to deliver, I should hove re-
forndtoowkethe rule obeoiute. Bui toe de*
livery of the sh ar m see ms to me soeh ao
esseotiol port of the contract tiat there Is
almost a total faUore of toe ooosiderotloo if
these shoree are not delivered, and if so toen
the rsspoodeot Lndlngtoo would oot be eotitled
to teaostor to the reepoodeots, the Souto Afrieoo
Tobooeo Compooy, the patents which had been
regtstsved in tois colooy. I toiok,
howeeer, toot that portico of the role
iodudlBg the words» **peoding oo aetioo
V
S8
taWte«liia««d tof tM fMRkNier " <niglit «• be
oMitMf *lfte«»«toe I <1» «l>i tee what M^e^ Iheri)
ow be in ^e petitioner 'bringinft »ta %etK* in
thiB Oonri. IF he auoeeedtf fn^ctyMnlng dami^jiM
in ihe TrmnsTtttf H?ourl Ihen^ olMirli^ lie wonid
nol be'entHied Ir^*' ooBtinwtt<)fc%f -the rale, •iM
lev««'t^ii8ft«"fciiereinre M be • wAetrcd tb Hhe re-
■pcMriJ^iite'^bnte «li« Me dlecAarsed, m, fbr •
in«Mno«;«:thei^peMttnterfi<mM'tiit fOlf time
tMdefihtaeelinTei ^ if ^dnitoft^tf ^lioutd be"*-
obtnin^bT* tbe "ii^^ltdAit w- the Tmnsma!
Geort. A#<td theDoirtb tif thh *«|)plf<^t^4(n, it*
feemB to me4hmt i^tet^Mmobb<3ofAipkBf- ought to'
pay them. L«dingtofi iBoMif a tbrnAl defendant.
It fs^not quite dUte^ lAnA h(* ha« b^n-* piftrconally
Benred, and in any eati^lie alte"woald hare the
right to apf»ly to hare UiO'-roK. fietndde. Tfae^
Court will nbw make the raleMMrftfteiomitCing
the words spending an action to *be instltifted
by the petitioner," the respondents, the de- '
fendant eompany, to pny the applicant^! costs;
«[ Applicant's ' Att<.mey*S' Messrs. Walker &
Jao^bsohn; ReBjiondetil^' ' Attohiey, Gas.
TfoWip-J.- -
SUPREME COUKT.
J ' ; .. « :
[Before the B{ght Hon. Sir J. H. dk Villisbs,
itC .K^.^:Mc^. (6bief Justice). Hon. Mr.
. ', justice Buc^^Aii, apd Hon. Mr. Justice
MaaspobpJ , .
B. V. STUUBMAN.
) 1897.
J Feb. 3rd.
jMc Jrstioe Maftsdorp stated that a case had
come before him as Judge of tbe week in whi^h
the ]ie6i4ent M^gisttaie of Willowmore* had
cofivicted one BtuunpMt 9f having ooj»t^avened
section 28 9f Act No. 28 of 1888, by having, in
coaneotioA' with ot)ierA attempted to break out
of the Willowmore gaol Stuurman plei^ed not
guilty, was ^nd gnilty, and. sentenced io three
months; hard. . labour. In bis <Mr. Justice
Maasdorp's) i opinioUt tberis . was not sufficient
evidence^ to justifyrth«> seik^eBoe* wbloh uuist
tlierefore ln^ quas^ied. .
M
f ''1867
BA8S0N V. VAN ZYU . J p^^ 3^
M*gifi[tVate*s Conrt — Simmons — ' Ac--
count — ^Costs.
The owissiou io delit>er with a turn*
mon$ in a cipUeiMe in a MagiMtrai^i
"Court, a full dccoukt relating to- Ae
claim U not fatal in cake such
.* ^MtitffW has not prejudiced /Je 4^/^'
d^miiHkU,.d^§m:e. ^
Tkfi pUudijf idUged in hie memmmu
.. Hkei 1*0 4efeudaM hHd, for-tfahuMe
coniideHUioii, promised to pdy a deht
'owing hif theplatnHffto A., oirf l^/^,^^
the debt uot, ia»i^g leen sopaid^ the ,
plaiHtif' juourredwui paid'cerU»m
. . leotte a Ji dejkmdimg^the eudiom krmigkt
'^against him far ^deht hy .A-.
H^ld that these allegations disclosed
nogro uud of joction ' by the plavtHf
agqis^^the defetidqi^ to re^(n)er th^
amount iif.c^stseo^p^d* :
.This waaian appeal fram ihe 4eaMo« oM^m'
Aotteg.BcoideAt Magiaimta of Flquitbeicg, !■
av^dotiitt (fop^hb i#oov«ry of AiA Uts. 8d.) m
whteh the p r ewm t app^Uant was plaiatlft
The sumttOM As .the Couti Moteiaad fevo
oouDte, the plahntlff elslmmg as ftkUasrs «
1. The .anm of etoveo pounds Hve shilliis^a
stariiag Mag balMwe for the work and htevr-
o€Ae1»tehi*i<f perfasmedlorthii defondaii* sii.
his rtqnst dnstng ikmmmnihm et Movsosber awl
DeoeMbei; MS, aadi JaMiary and February,
18Mi and whM said flnbunft of £11 6s.'defM^
dnoi undertook: nmd pramited .to pny one
AbAham J. Van dec Mer^ie, whowasnoMttor
oCplhintiff for ••ifattn^ sum, but laUed ao t» dc^
2. Th4sum^a8«..:84&^^iBgthetaxedoo8fta
paid by plaintiff to thaimsleeB of tiie inaolfesU
estate of tha suid^Abrahaaft J. van der Mer«M In
July, I8i«^ iBnnrffad4^' them in veeoverflig froua
the Resent pteiutifl the4rakn et-Mk is. as above
mentioned.
The follawing ttooouutr was annexed to ihe
J. JlVAHBYIi
Dr. to R. J. «. BAflflON.
To f^ork and labour dpne^urtng
monttis of ¥roveWkl)ei> ^and
December, 1895, and January
and Febtuary, 1896 •••
Received on account by cash
£69 If 6
48 7 «
§
£11 6 O
6 8 8
•BalpniQe * ; .«. . •..
Xo ooate fif suit, iMolv^n^t SstaAe,
A, Ji ?an{ der Merwe ▼♦ .B. J. Ci.
The dufendant before pleadhig raiasd the
MIowtng exoeptionse . '
^.ThinsundionsiabadiaBd vagl»in law
ebows nolground of action.
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I
«»
In tkai dfttoduit wm mot lerred*
pt9p&t mpT 0f •ooomii «poa w>|iieli Ihe dsusBd
it fiwdeJ, tU. t '
' f «) TImi H ts not siatod-what work fttid
labour has been performed bf plaintiff.
[b) What wages tbb plaintiff claims and
what agreement there Was between* the plaintiff
and defendant as to wjges per day, week, or
(c) That no properly specified account has
been served on defendant showing I'Ow plaintiff
arrived at the snm of £59 12b. 6a. due for work
and laboar lees £4S 7e. 6d. as received on
account by cash so as to arrive at ttie balance
of £11 6fl.
•
id) That it is net properly and distinctly*
•t«ted in tha Moond g^ in ^« f upaq^Mifl how
plaintiff acriTadat the amount ;of £6 8s. M.,
taxed costs paid« Uow thafe costs were in-
curred, l>y whom they were taxed« a«wi that
defendant was not^wnred with a proper aoqount
of same, or copy of bill of ,Q0s4a taxed.
The BowilQat' M AsMvata upbeM thii attep-
tmoa ior tha ioUowing lanaBOS:
la tiiia oaae, hafoie. pleading, defendant's
agent ezoepted to the sumoaaas torn the ground
ibawvaativrthX :in«iiltiffs altoniBy in reply
mer^ <|iioM iMf«MO» amd Omiimig {HM.
a Act)r which giaea a Copy of, the plainta aa
hriddownlnsefsilCQllNSohednleOof Act a&of
, imfataii»gth«l'aahavhad Mtawdtha lerm
al plAhat Tthotaili aelrtotth his suaMaana.is
gaod tmd aufiBcknt, also: thht tha> aaoanntsi
annaxcdnM'aufieiently coiplieit.
It la nat asy aaslain ta aneoBiage litvolans
meap t ia n a or to mtim^wlm lham,jaalesa in my
apinion there nre seMly gand ]gropnd)i for their
being raised, but in this inatawflo atienaajiyatng
the plaint la, the snmmoack i(Q-\^ sufficient for
jturp9$c of pkadingt the .a^ipoounti annexed dor
not in my opinioii set up ei^^Ulif enough thei
feal causa of action in order to frame adefenpe.
Van Zjl, in his. JMd^i4U Practice- of South
J/ricth states, p. 22 : The summons should set
forth hi iafly, hut olearly the nature and cause of
action or complaint, and the relief sought hy
plnintifffSo as to leave the defendant no foom
for doubt as to what is meant o^ dem^h^ed er
required of him.
Also on p. 29, Tan Zyl says : Jt is 'true . that
the ol^eet of a summons is to bring the defen-
dant into court at as little expense as pd6sit>IeJ
andlbtt if he ifUentfitd defe»f the ac^tlon hd
Witt gat fie' informsttieU from 'plhiMiff's
deetatatlctt to be sSHed on Mm'afterwliitit,*but
arfeu he has ftill %Ao>ii^ledge'^f .&e l^lainUff^i
eialin, ha la often nftaUe toMie advice "od^ the
aa fa ''whether he can defend or m^"
I am aware: that the dhapter ahciv qnotad
bears aponijiMfioiat practice <n the-thifa Higher
Oonits, but I take it that the prineM« •>»>
applhlB to smnmonaea in inferior Oaurts^ and in
tfanse Courts it ii tbe rate to set forth fnlly in
the Buaimonstiie whole tioand of acthw, ; at' all
areata the aceoont required i^ Bale 1% eahedale
» of tha R. M. Oouri Act shcnid ha sufficiently
expMcit 'tio supply the place of the phpnfeiff's
declaration in the • Higher Ootats. In my
orinicn both acooants- aae vagna and^jlo not
disclose a cause of action in such manner aa to
be able to establish a defence. I tlierefore
upheld the exception wHh ooste»
Against this ded^ian the appeal wda now
brought.
Mr. McGregor, for the appellant: The
summons is mainly in- the form of plaint
in Schedule C, Act 20 of 1866, and therefore is
as dear as need he. The account served with
the summons is not necessary if it is clear from
the words of the summons what the claim is.
The account annexed is not full— but need not
have been annexed at alL Oa count I. the
Magistrate should have heard the parties
SI Iter V. Brits (7 E.D.C., 151), As to count
II —unless it can be asbumed that plaintiff was
the mandatory of defendant, we must abandon
it.
The Court intimated that it wished to hear
counsel for the respond^t on count I. only.
Mr. Buchanan, for the respondent: The whole
point !s whether the summons is clear. Now
Rule 10 Schedule B, Act 20 of 1856, provides that
the account shall be served wfth the summons ;
and the- Magistrate can only ezcuaa an insuffi-
cieuoy.i% thi acepuat if the defendant is not
prejwUced-in.hlasd«(ence. The account served
in this case does not take the summons any
further Incept as to tl^e amount. The defen-
dant is' set'lotMy pM|udic^'iU Mt defence not
knowhig #haf citse to^te^ the nde of pro-
cedure in the Resident Ifa^liftrate'a Court
differs from that in the Supreme Court, where
the issues are developed on the pleadings.
Do-jVline's; CiJ.: If the' omfeslon to
deliv^i^a co|*y^f an account with the itommens
is ndt'fataTHh otsb such bmissiott hd^ neit'hre;
judlced -the tiefendaht in hfs dcAsfi^, 'Aen
/Mt^ th^' fact that ah account which *#!»' in
fact delivered was not quite oomptst^ w^N^not
undei' similar circumstances he fitthf 'flP» Ihe
Bummohs. The account dcHversd *^ in the
present dase is fairly complete, bht ^eVcAPif it
were otherwise, I am satisfied that the^delcMcKant
'has in no way been prejudiced Hn" his*de0enee by
reason of the form of the aecounti fhe excep-
' lion to the flrM count di^t ^t'to 4ate been
suttnincd, andtothls extent Ihe appeal aught
40
toi be aHowwL As lo the leeoMt exmpkkmi it
WM p repc rl y swIaiBed bj the Megiitrate The
eomt lo whieh esoeplioB was eo taken ellegee,
in efleet, that tiie defeadavt had for TahmMe
eouldei«tioii fnomieed to paj a debt cHviag bj
the phOaMff to a third paHy, that the debt was
aot 00 paid, aad that the plaintiff incinrrad and
paid eertain eoete in defending nn notion
bw n ght against him by snob third party for
the debt Tiiese aliegativns clearly disclose no
gronnd lor nn notion to reoorer the amount of
tfao costs so paid from the defendant.
Their lordships concnrred.
[Appelhint s Attorneys, Mesvi. Wniker &
Jnooheohn; Bespondent's Attorneys, Messrs.
Vna Zyl & Buissinn^.]
LOUW V. AITDUWS.
Pledge — Dclircry — Attachment — Pos
I 1897.
{Feb. atrd.
A ctrUnn horse belonging to a judg-
ment debtor was found by the Messen"
get ofdke Court on a farm occupied
bff such debtor runmng with her other
cattUy and was aUached in execution
of the judgment.
Before such attachment the horse
had been pledged by her in security
of a debt due to the pledgee and
delivered to ihe pledgee^ s agent, and
by him left in the poesessiom of the
dt^ftor^s minor son^ who liued wiM
his mother and was entirely under
her control;
Held, on appeal in an interpleader
sukf thai the aUachmeni was valid as
e^gaimst the pledyee.
This was an appeal from the decision of the
Aotiag Resident Mngistmte Albert, (Bnrgfaers-
ijbrp), in an interplender snit brought on Mh
Deoember, 1896, in which the respondent
dntesd as his property a eertain mars wliich
had been nttnobed by the messenger of the
Oonrt under a writ oi execution issued after an
notion brought by the pro as n t nppellaat,
Kntrina Louw, ngnlnst one Anna Louw, of
YaaUmnk.
The oridenee of the respeadent before tlie
Besidemt Mngistmte was to the effieet that
after Annn Louw had lost a case with one
she nsked the rsfpondent to pny the
judgment debt and oost*. Tlrfs lie did aftor
getting security under a w iitmi agreenMBt
(marlied A, ns referred to by the Aeting Resi-
dent Magistrate in hie ''Bensoos*') purporting
to pledge with him oertnin six horses (amongst
which was the chestnut mare in di^mte^ then
running on the farm Yaalbank In this agree-
ment Mrs. Anna Louw undertook to deltTer the
horses to Hans Louw, as agent for the respon-
dent, **to hold as the respondenVs sole and
univensd property/* Hans Louw was one oi
the parties to the agreement, and therein under-
took in accepting the agency to hold the horses
at respondent's sole disposnl to herd them, nnd
not to remove them from Vaalbank withoni
respondent's permission.
The respondent stnted that his agent neelTod
ddiTery of the hones on his behalf ; aad tint
he himself took sll the horses away from Yanl-
liank except the chestnut mare, whidi wan
astray at the time.
The respondent further stnted that at the
time the agreement wns made the mares were
only hnndedovur as security, but timt they wen
to remain his pro p erty ftbeolutely (and irre-
spective of tiieir Talne) in the event of the
costs not being pnid.
Philip Louw (son of Annn Louw) stntsd thni
after thehorses were delivered to Hans Lomr
the Istter delivered them to him to tnke enreof
and returned to Burghersdorp. The eheetnut
mare remained nt VnalbanlE, under his wwn
charge on behalf of Mr. Andrews, iimnlng wMi
the other enttle on the farm. He had AlwiqrB
formerly looked after it on behnlf of hin
mother, Anna Louw. He himeelf wns 19 y e nsn
of nge, nnd entirely under Ms BMither's onm
nnd oootroL Hereoeived no nayment for look*
ing after the horses;
The Messenger of the Court stated that ho
seised the mare In execution whHe running on
the farm Yaalbank; the chestnut mare was
claimed by Philip as his own property. No one
said it belonged to Andrews, the latter had, n
few days eaiiier, asked him to go to Yaalbank
and bring in the mares belonging to him and
running there.
The Acting Resident Magistrate declared the
mare to be not executable for the foUowIng
I believe that the facts proved In this
That the chestnut mare in di^n^te was the
one mentioned in agreensant macked A and
was bona fde handed over and deliveind to Mr.
Andrews by Anna Louw throngh the agent
mentioned— Hans Louw— nnd specially mp^
poiated lor that purpose inthafi ngrsement nnd
1
t\
J
\\
I!
I
:i
I
-1
I
u
1
41
\
/
m nteiaed lyy RamB I^cvmw^a lierd m Mr.
^■dnm' proiMrty, tlMfrefov« virtuAllr ia the
PMiikn oi Mr. Andrews «ntU seised bj (he
^<kf iBMwmgur. Tbe ii»«re was delirerad at
TuniMkfnitlisant ooemsion referred to in the
nmiudsiilMeqmenUy gn^*^^ «t PMidenver-
fiMiwUlherPklUpweiit tofetehitata)ftterdst«
ti\iriig H to Bwr^ieradorp for Mr. Andrews,
vhMihideiMiiy-mefleeiftSer seised It at YanU
b«k. NotwUlwUKBdins tbe fact that iha
etiteee ia itesk mad imsatlsfineloiy and ihe
■g w—iint smblsoovB* as will be seen, I am
(wnned ihsot tlie trmnssctioii was hona-^de
Mdnoim eokMmMe one. It will be seen that
the da^sty- m sia e ageir wsa infonsed by Mr.
Aa^evi tbmi tAkore were certain maree at
Tmlbask, whielfc l&e desired the deputy*
ifaooild brins in for lum. It U troe
only t h r e e dsys before the writ was
The tvsiiaseiicNi might have been
more peihlie snd is this respect the vase
la wesk« H ow e ver I sin eoavinoed of the hantk-
ftim Iheicol, asd ihst justice has been done, the
reootd asd ansexuren apeak for themselves.
The tiasaanlles ia aoboeqiiently oonfirmed as
win be seen, asd the intestion of the oootraet-
is8 psrUea whes entering into the agreement is
Mr. Sehieiner, Q.C., for the appellant: The
in this ease depends largely cm the
facta Beattie v. FenneU (6 J., 37)
that the onus in interpleader suits lies on
See also Ikre v. Cohnial
i^J^ 19X In the present case the
not in the p o ss es si on of the claimant
mt all. There must be delivery to the pledgee
faiKsrelf or his agents, and there must be reten-
of the possession.
Mr. Orahsm, for the respondent: The trans-
b tm a j ide nne. Haas Louw
desrly was the appointed agent of the pledgee,
desrly stated he accepted Andrews* delivery
the purpose of the pledge, and appointed
the herd then on the pledgor's farm to look
sf fter the cattle lor him. This was the most
eowenient means of delivery. Paffne v. YaUs
(9 Jots, 494) dlifers from ihe present case in
the holder there, did not remain the
At of the pledgor. Bat there is nothing
to show that Hans Louw or Philip
Tcmsiiied the servant of the pledgor. Bee
IV. IT. BamM v. PoffUer, Son 4* JkTeDmald
(11 VoL the Report 189(», page 135). The agent
ii ikm erne wm a relstlon of the pledgor, but
he wm mppoimimd for the spedfio purpose of
neehiag dBUrerym
The Obimf Juatioe : Did Hans teU Andrews
lk§t he bmd mppoinUsd Phihp to look after the
Mr. Qraham : There is no evidence that he
did.
The appeal was allowed with costs.
De Villiers, C. J. : The contraet between the
plaintiff and Anna Louw was in substance a
contract of pledge and not of sale. There was
a right to purchase under certain cirovmstances,
but at the time when the horse was attached
that right had not been exercised. The horse
was one of several which had been delivered to
the plaintiff as security for a sum of money
advanced by him to Anna Louw, These horses
were duly delivered to the plaintiff's agents
Hans Louw, and if they had remained In the
agent's possession the pledge would have
remained in force. But Hans Louw delivered
the horses to his younger brother Philip, the
debtor's minor son, who lived with her and was
entirely under her control. Evidence was given
to the effect that the horses were given to
Philip to take care of, and if he had been an
independent herd his possession might fairly
be held to be the possession of the plaintiff's
agent. But not only was Philip entirely under
the control of his mother but the horse in ques-
tion was by him allowed to run together
with his mother's horses and when attached
was found by tbe messenger on a farm
in her possession. If the general principle is to
be maintained that a pledgee loses his pre-
ference if tbe pledgor obtains possession of the
articles pledged, the principle should certainly
apply to a case like the present where the
pledgor's minor son, who is entirely under her
control, obtained possession of the pledged
horse and allowed it to run on her farm with
her cattle. The appeal must be allowed, with
costs in this Court and in the Court below.
Buchanan, J., concunred: The effect of the
evidence is that the pledgor retained possession
and control of the property pledged.
Maasdorp, J., concurred.
Appeal allowed accordingly with costs.
[Appellant's Attorneys, Messrs. Walker k
Jacobsohn; Bespondent's Attorneys, Messrs.
Fairbridge, Arderne & Law ton.]
4,^
SUPREME COURT-
[Before the Right Hon. 8ir J. H. db Tilliebb,
P.O., K.O.M.G. (Chief Jaetioe), Hon. Mr.
Jaetice Buchanan, and Hon. Mr. Jtutiee
Maabdobp.]
PROVISIONAL ROLL.
BBTNOLDS V. OAK.
I 1897.
^Feb. 4th.
Mr. Buohanan apolied for the ftoal adjudica-
tion of the defendant's estate. The provisional
order was granted January 26 last.
Qranted.
TBUBBB y. LAKAB.
Mr. Jones applied for proTisional sentence on
two mortf^age bonds, one for £26 with interest
at 8 per cent, from March 1, 1896, and the other
for £10 with interest at the same rate from
Norember 6, 1896, and aslied that the property
specially hypothecated be declared executable.
Granted.
Ih re O. A. P. BA0HME80H.
Mr. Buchanan applied for the discharge of the
insdrent Qeorge Albert Paul Bachmeeob, under
section 106 of Ordinance No. 6 of 18i3.
Qranted.
GENERAL MOTIONS.
IN TOS HATTBB OF THE MINOB L0UB8EB.
Mr. Jones moved for authority to the Master
to pay the sum of £46 per annum for four
years out of the funds in his hands belonging
to the minor fo: the latter*8 maintenance and
education.
Granted.
IN THE MATTEB OF THE MINCES VAN NIEKEBK.
Mr. Maskew moved for authority to the
father to raise a sum of £160 on mortgage of
certain landed property for the purpose of re-
storing buildings destroyed by fire.
Granted.
LAZABU8 V. LEWIS ; LEWIS V. LAZABUS.
Costs — Interdict.
These were a motion and cross-motion for the
costs of certain proceedings heard in the
Supreme Oourt on the 19th and 23rd November
last (6 Sheil, 429).
Mr. Schreiner. Q.O., appeared for the appli-
cant in the motion and the respondent in the
cross-motion ; Mr. Searle, Q.O.. appeared for the
respondent in the motion and the appltoant in
the cros '-motion.
After argument,
The Ohief Justice gave judgment. He mid :
All the proceedings in this case were aet in
motion by the respondent, and it was owing to
him that the costs were incurred. He
moved to interdict the Registrar of Deeds
from registering the trade mark of Lasanu.
That was fully discussed in court, and many
affidavits were filed. Probably it ?Bay now
be found that many of theee affidavits were not
necessary, but, at the same time, Lassmg was
bound to be prepared with his affidavits, con-
sidering that Lewis in his affidavits had gone
into the whole merits of the case. The
Registrar of Deeds has decided the matter
entirely in favour of LaEarus, and from his
judgment there is no appeal. Lewis therefore
has failed on every point, and he therefore Is
the one who must pay the costs upon every
principle which regulate the granting of ooete.
The application of Lasams must be granted,
with costs, and the cross-application be dis-
missed, with ooste.
[Applicant's Attorney, G. M. Walker; Re*
spondent's Attorneys, Messrs. Findlay & Tait. )
THB PETITION OF THB METBOPOLITAN AND
BUBUBBAN BAILWAY CX)MPANT.
Mr. Searle moved for an order for
the attachment €ui fniUkindam f%r%sdi4fiicmtm
of two locomotives belonging to John Fowler k
Oo,t for the purpose of an action to be instituted
against them by the petitioners.
The order was granted, with leave to sue by
edictal citation, returnable on the first day of
next term, personal service to be eifected.
IN BBTATE OAK.
Mr. Buchanan applied for the appointment of
a provisional trustee in this estate, with poweis
to sell the perishables and live*stook.
Granted.
WINDLHT v. FAVBB,
i 1897.
f Feb. 4th.
British Becbuanalaod Annexation Act,
1895 " Magistrate's Coart— Pend-
ing causes — Postponed caae — Juris-
diction — Power of Attorney —
Resident Magistrate's Oourt — Sub-
stitution Supreme Court.
Before the annexation of British
Bechuanaland the plaintiff sued the
43
dtfoidant im a ReMeni Magistrate's
Court ef thai territory on a pro-
missory note which was produced as
evidence at the trial.
7%« ca*e teas postponed to enable the
defendaMt to produce, evidence for the
defence^ to the effect that the pro-
missory note had been paid.
After the anmexatioH the ease was
caUed on but he/ore a different
Magistrate f and^ on exception taken ^
he held that he had no jurisdiction
and that the action must commence
de novo.
Held, on appeal, that although the
Magistrate was not hound to accept
as evidence any oral evidence pre-
viously tahen he/ore another Magis-
trate, yet as the promissory note had
been produced and the defence was
paymeuty he ought to have called on
the defendant to produce evidence
in support of the defence.
This waa an appeal from the deoi»ion of the
ResiJent Magistrate, Gordonia.
The appellaDt prior to the annezation of
British BechuanalaDd to the Colony, sued the
respondent in the Resident Magistrate's Court,
Oerdonia, upon a promissory note for £59 fis. 6d.
The case was partly heard, and Ihe re8ix>ndent
obtained a postponement of the case for the
porpoae of obtaining witnesses to prove that the
amount due on the noie had been paid. Before
postponement the note had been produced and
filed with the records. Before the case came on
again for bearing the territory had been
annexed to the colony, and a new Magistrate
had been appointed. On the case coming on
sgain for hearing, reapondent's agent rais(d an
exoeption to the Reeident Magistrate's proceed-
ing with the matter, urging that the case should
ia Tiew of all the eircumstanoee be eommenoed
ien^ro.
Thia exoeptioa was upheld by the Resident
Magistrate, and he refused to proceed with the
ease, diamiaaiDg the aetion.
Against this the appeal was now made
Mr. Searle, Q.C., for the appellant.
Mr. Graliam, for the respendent, stated that
the Registrar had refused to accept the power
giTen to appear in thia Coort, by the attorney.
The tatter's power was given to him to appear
in the Reaident Magistrate's Court, which he
4i4. The power contained the usual clause giving
powers of substitution, but it was entitled *' In
the Resident Magistiate's Court." The Regis-
trar held that it applied only to the proceedings
in the Resident Magistrate's Court and gave
the attorney no power to substitute anyone to
appear in the Supreme Ci»urt.
The Chief Justice : The Registrar was quite
right in refusing to accept this informal power.
Bei^g headed 'In the Resident Magistrate's
Court " the power only applies to proceedings in
that Court. But it will be better to proceed if
the parties will consent,
Mr. Searle having ooosented, the informality
waa waived with the permission of the Court.
Mr, Graham then took the objection that the
appeal was not lodged within the proper time.
It was not as a faet noted till thirty days after
iudgment instead of by next Court day. The
caae was partly beard before annexation— the
judgment was given after. Under Act 41 of
1895, the Resident Magistrate's Rules of Court
would apply. It ia true that in Smith v. JHnto
(Buchanan 68, page 105) the Court extended the
time for appeal. Rut the Rule of Court is Y%ry
explicit, (S3rd Rule, Fohedule B, Act 20 of 1864».;
The Chief Justice : When did your client get
notice of intention to appeal ? If Mr. Searle
formally applies we will allow the appeal to be
heard even now, on the ground that the parties
'may well have believed that the old Act
applied ; the matter having gone so far before
the annexation. The notice was given within
the longer period allowed before annexation.
Mr. Searle then formally applied accord-
ingly i Ai^<l leave was granted to proceed.
Mr. Searle referred to section IJ, Act 41 of
1896 ; and Will v. Hvmphreys (6 Shell, 5) ; and
continued : Act 20 of 1856 makes special pro-
vision as to criminal cases ; where the case is
remitted the Act is carefnl to show that it is
the Court, not the individual magistrate, which
is of importance. But there is no provision as
to civil proceedings. Still the Resident Magis-
trate had a right to proceed with the case as
he found it. He ought not to begin de novo;
he could go on with the record. The note was
part of the record. The signature was not
denied.
Mr. Graham: The Resident Magistrate
eould not give judgment on evidence part heard
by another Resident Magistrate. The Resident
Magistrate had no legal evidence before him on
which to give judgment.
De Villiers, C.J. : This case, it appears, came
on for trial befoie a Magistrate of British
Bechuanaland before the annexation of that
territory. It was an action on a promissory
note which was produced at the trial and the
case was postponed to enable t^e defendant io
4A
produce evidence in rapport of his defence thnt
the note had been paid. After the annexation
the case was called on but before a different
Magistrate and the exception was taken that
the case must commence de noto. The Mains-
trate upheld the exception on the ground that
he could not accept at evidence any evidence
previously given before another Magistrate. I
quite agree that, notwithstanding seotioe 11,
sub-section A of Act 41 of 1886, the Magistrate
was not bound to accept oral evidence pre-
viously taken before another Magistrate, but
that was what the Court was asked by the
plaintiff to do. The promissory note bad been
produced and presumably was of record, and the
only question was whether the note had been
paid. In order to enable the Court to decide
that question the defendant ought to have pro-
duced his witnesses, but instead of taking that
course he excepted to the jurisdiction. Clearly,
the Court ought not to have put the plaintiff to
the expense of issuing a fresh summons but
ought to have called on the defendant to pro-
duce his evidence. The appeal must be
allowed with costs, and the case remitted fo be
tried on its merits. Costs in the Court below
to be costs in the cause.
[ Appellant's Attorney, Gus. Trollip ; Respon-
dent's Attorneys, Messrs. Walker A Jacobeohn].
SUPREME COURT.
[Before the Bight Hon. Sir J. H. DB Villiebb,
P.C, K.C.M.O. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdobp.]
{18!*7.
Feb. 6th.
Feb. 12th.
Ship — Attachment cui fundandam juris-
dietionem.
This was an application on petition by Messrs.
Woodhead, Plant k Co. for the attachment
of the barque Oberon, which was about to
* See the aabsequent case of Woodhead, Plant A Co.
T. Qttlly, heard 24th Febrasry, 18»7.
leave the Dodu. An affidavit had been
filed by Messrs. Woodhead, Plant & Ca to
the effect that in October, 1896, at Middles-
borough-on-Tees, their agent shipped by the
Oberon 19,281 bags of Thomas's phosphate
powder. The ship arrived in December, 1896,
and subsequently came into dock, where, owing
to the negligence of master and crew, the cargo
was damaged by salt water. Messrs. Woodhead,
Plant & Co. sustained damages to the extent of
4t3,600,and were apprehensive that the ship
would leave without satisfying their claim, and
further, they intended to institute proceedings
against the owners of the barque for the re-
covery of damages.
The Chief Justice: When did the damage
occur?
Mr. Schreiner said that it occurred after the
vessel came into dock on January 21, 1897.
The Chief Justice : Why have they waited
until she is about to leave 7
Mr. Schreiner said that efforts had been
made to settle the question, but they had not so
far been successful. The ship was then moving
out into the Bay, and the petitioners required
an attachment for the pnrposeof founding juris-
diction. It was quite possible that a settlement
would still be effected.
The Chief Justice : Tou say it was throngh
the neglect of the master.
Mr. Schreiner said the petitioners contended
that there was no due delivery, and the damage
was due to no peril of the sea. The ship waa
moored alongside the quay when she waa dis-
covered to be sinking, but there had been no
discharge of cargo.
The order for the attachment of the ship,
ad fundandam jurUdietiimemt was granted
with leave to the master to npply on Tueadny
next or some future dato on due notice for the
discharge of the attachment.
PoHea (February 12th).
Mr. Schreiner mentioned the matter of
the barque Oberon, which was recently aitaohed
by order of the Court. He said that an agree-
ment had been arrived at between the partiee
with a view to releasing the ship from attaeli-
ment. Security had been arranged in the auna
of £2,00 >, and this sum being in the handa of
the Standard Bank, jurisdiction would siiU be
maintoined after the release. The parftlea were
satisfied with the security if the Court would
approve of the vessel's release.
The Court granted an order for the releaae of
the ship from attachment.
[Applicants* Attorneys, Messrs. Van Zyl jc
Buissinu6 ; Respondent's Attorney, C. O
Silberbauer.]
45
I 1897.
i Feb. 5Ui.
WILL y. DK JVT.
Settled aeeoaut — Written ackuowledg-
ineat of debt — Qpeuing account —
Attornej and client — Mistake.
Where, on a sett ement of accow^ts, a
written adtHowledgment of debt has
been given by one party in paymeiit
of the balance found to be due to the
other J the Court wilt, ia a suit on such
achnawledgment, allow the accounts
to be opened and re-examined upon
proof of some material mistahe in
such accounts,
A settled account between attorney
and client, or between other persons
standing in confidential relations to
each other, will be more readily
opened than accounts between persons
standing in independent relations to-
wards each other.
This was an appeal from the decision of the
Bendeat Magietrate of Gordonia in an action
broQgbt by the plaintiff against the defendant
for the reooYery of £7 Ids. 4d^ with interest from
December 3, 1895. upon a good-for signed by
the defendant in favonr of the plaintiff, and for
■iz shillings and seven pence for work done
between December, 1894, and July, 1890, being
balance of an accoun t of £2 (is. 2d. lees £1 14s. 7d.
paid on account.
Mr. Scttrle, Q.C., a. peared for the appellant,
sad Mr. McQregor for the respondent.
Mr. McGregor raised an objection to the
appeal being proceeded with on the grouod that
the appeal was not noted in due time. The
ease was heard on August 4, and the appeal was
not noted till September 3, 1890. He submitted,
as the plaintiff was an attorney himself,
he ahoald hare been specially careful to hare
conformed to the rules, and tliat he could not
now be heard.
Mr. Searle said he could not deny that the
appeal was not noted in due time, but he would
ssk under the special circumstances (as clearly it
was a matter in which the plaintiff had been
misled by the practice which had previonly pre-
vailed in Bechoanaland), that epeoial leave might
be given to proceed with the appeal He cited
Smith v. Pinto (Buch. 68, p. l06) and referred
to Wtndley v. Fatre decided yesterday. Our
appeal was noted within the time prescribed by
Proclamation 198 of 1894, which was Uw prior to
the annexation As a fact i espondente have them-
belves delayed in giving us notice of this
objection.
The Chief Justice: How is it that this
objection was not tab en earlier 7
Mr. McGregor: Some of the correspondence
was mlBlaid. Appellant has suffered no possible
prejudice through our delay. Counsel cited
Queen v. Prins (1 Shell, 199): Wiyyett v.
Jfossel Bay MunieipaOty (9 J. 246).
The Chief Justice : If this had been an appeal
from one of the older and more settled districts
in the Colony I should have had do hesitation
in refusing to allow this appeal to proceed, but
we cannot losesiRhtof the special circumstances
under which the parties have been acting, and
it is quite possible that the new law might have
escaped their notice. It is quite true that Mr.
Will is an attorney of this Court, and ought to
have known better, but probably the fact that
the law had been changed escaped his notice,
and under all these circumstances it would be
better to allow the appeal to proceed, if Mr.
Searle makes a special application.
Mr. Searle then formally made the special
application, and the appeal was therefore pro-
ceeded with.
At the hearing before the Resident Magistrate
the plaintiff stated that he had acted as the
defendant's attorney ; that he had repeatedly
endeavoured to obtain a settlement of the
amounts due to himself; that finally the
accounts were gone into with defendant who
gave the good-for for £7 16s, 4d., the amount
ascertained as the balance due. On the account
annexed to the summons there appeared an
item £1, which plaintiff at first stated was an
amount for which he had guaranteed defendant
with one Holmes, at whose shop defendant
wished to buy some goo Is; but in cross-
examination, I'lalntlff could not deny that the
amount was due to defendant for his expenses
as a witness in a case brought by one
Marquardt. The defendant stated that on
appl) ing to plaintiff for payment of his witness
expenses the latter said he could not give him
the money just then, but would instead give him
an Older on Holmes for goods, which he did.
The account rendered defendant on which the
settlement was arrived at also contained
charges for pound fees, and on a bill of costs as
attorney for the defendant in a case Lennox v.
De J^y (the present respondent). The plaintiff
refused to answer questions put to him as to
whether he had renderd Mr. Lennox an account
or had credited him with the costs now charged
against defendant. As to the pound fees the
defendant admitted the correctness of some of
the items but disputed the rest.
The Resident Magistrate gave judgment of
absolution from the iastance with costs; the
following were bis reasons :
4a
In tbiB case the pUiDtiff sued def endftnt on a
good-for and other charges amounting to
£8 2b. Ud.
It haa been proved in evidenoe that the
amount of £1 paid by one Holmes on aooount
of plaintiif to defendant was for witnesB
expenses due to defendant; also this was
tubsequently admitted by plaintiff after pro-
duction of an order to Holmei*. G( nsequently
the defendant could not be cbaiged with the
amount and interest thereon.
The items for pound fees are very doubtful,
and the plaintiff has not clearly proved that
he is entitled to charge these items.
The case of Lennox v. DeJuy was settled out
of court ; the bill of costs charged by plaintiff
who is an attorney of this court is absurd and
illegal and the plaintiff clearly has no right to
make this exorbitant charge.
Most of the charg s appear so doubtful that
I find it impossible to separate the items really
due from those doubtful.
For these reasons my judgment will be abso-
lution from the instance with costs, leaving the
plaintiff to bring on his case again if bo
inclined in a more correct and legal form.
Against this decision the appeal was now
made.
After argument.
The Oourt dismissed the appeal.
De Villiers, C.J. : There is no doubt that in a
suit on a written acknowledgment of debt, the
bnrthen of disproving its correctness lies upon
the defendant. As between men of businemi
dealing independently with each other it would
be difficult to satisfy any Court that a good-for
or other acknowledgment of debt given on a
settlement of accounts does not tru*y represent
the defendant's indebtedness. Where, however,
errors are i»hown in such accounts the defendant
would be entitled to have them thoroughly
investigated, notwithstanding any settlement
which may have taken place. In the present
case, not only have errors been admittedly
made in the accounts rendered by the plaintiff,
but his relation towa*ds the defendant was the
confidential one ot an attorney towards his
clieut. The Magistrate was quite justified in
more readily opening the accounts between
them, although these had been settled by means
of a good-for. That document itself shows the
defendant to be a somewhat illiterate man, for
the signature is that of a man who is hardly
able to write his own name. The result of
opening the accounts was to show that there
were two important items which required some
explanation from the plaintiff. As to the first
of these itenis he refused to answer perfectly
releTant quettions put to him in cioss-e^amiQa-
tion, and the Magistrate was justified in
drawing his own deductions from suoh refuoiU.
As to the other item be did not refuse to give
information, but the explanation whiok he £»▼•
was quite unsatisfactory. The two itema
together exceed the sum claimed, and the Court
below correctly pronounced absolution from the
instance. The appeal must be dismissed with
costs.
Buchanan, J., and Maasdorp, J., concurred.
Appeal dismissed accordingly, with costs.
[Appellant's Attorney, Ooa. Trollip; Respon-
dent's Attorneys, Met^srs. Walker k Jaoobsohn.]
SaPREME COURT
[Before the Right Hon. Sir HsiirBT Di Vii.-
LIBBS, K.C.M.G. (Chief Justice), the Hon.
Mr. Justice Buchanan, and the Hon. Mr.
Juptice Maasdorp.]
BUEAB V. BADKMKIRB.
J 1887.
{Feh. dtb.
Siimanons — Pleading — Material allega-
tion — Oral contract — Written agree-
ment — Variance.
II. imd S. entered into an oral (Agree-
ment/or the saleio S. of the feaikers
of certain twenty ostriehes.
Thereafter a written agreement wa9
entered into cnnfrmins^ the oral *
arrangewenty but not specifying the
number of ostriche$ the featheru of
which were sold.
S. sued R. upon the oral agreememt
for damages for breach of contract,
but the defendant excepted to the sum-
mons on the ground that it did not
state that as a fact the ostriches had
borne any feathers, and further that
the summons was at variance with
the written agr ement. The Resident
Magistrate upheld the exceptions.
On appeal the Court held that thr
presumption was that in the ortlinar^
course of nature the ostriches wnmid
bear feathers and that it was not
necessary to allege that the ostriches
47
kmd home Mem, and held further
thai the parties did not intend to
em1)ody the whole of the oral in the
written contracly and that plain tiff
was entitled to sue a» he had done.
This WM ao appeal from Ihe deciBion of the
Resident Magistrate, Uniondale, in a case in
which the appellant was pltintiff and the
reqxmdent defendant*
The summons in the Goart below called on
defendant io show why he had not delivered to
Zelieh Shear, of Uniondale, trading at Union-
dale, the plaintiif, the feathers of certain twentj-
one oetriobes or paid him the sum of £11 ids*
sterling, and at the same time to show cause
why he ehouid not be condemned and ordered :
(I) To deliTsr to the plaintiff the feathers of
oetiaia twenty ostriches sold by the defiaodant to
the plaintiif as agreed upon orally at the house
of the plaintiff in the Tillsige of Uniondale on
or about the 24th day of March, 189«, by the
plaintiff and defendant, whioh said feathers
dsfendant undertook to deliTer to the plaintiff
during the months of April and October, 1886,
en his farm Sonterwater, which agreement was
pertly ratified and confirmed in writing by the
defendant on or about the 2nd day of April.
1886^ at Souterwaler, in respect to his (defen*
daot^s), liability and undertaking to deliver
date of deli very and price of the said feathers
per lb. only, but in which confirmation of said
agieement the defendant failed to specify the
number of oatriches of which the feathers had
been bbM and bad to be delivered by him to the
■aid plaintiff, copy of which confirmation
of said agreement is hereunto annexed, and
which the said defendant on divers occasions
sahseqnent to the 8nd dar of April, 1896, was
leqneeted and undertook, but now refuses and
negleete to deliver to the said plaintiff ; or in
deiMili thereof to pay to the said plaintiff the
sum of £10 sterling as damages sustained by
the said plaintiff by !!eaeoa of the breach on
the pnit of the said defendant of the said
ag r e em ent and contract as set forth above, and
failure and refusal to render and deliver the
f eathetu of the said twenty ostriches to the 9aid
plaintiff during the time intervening between the
mid months of April and October, 1896, and in
that tbe said plaintiff went out several times to
theaaid farm Sonterwater, about forty-two miles
from the village, to get delivery of said feathem
and which could have been sold by him to
otbevB ai a profit.
A second count in the summons set forth
that defendant had agreed to deliver the
fearers of three other ostriches at 16a. per
ostrich, but had failed to deliver the feathers of
more thin two of the birds though plaintiff had
paid the amount of £2 56.
The plaintiff admitted that certain tenders
had been made by defendant, whioh tenders the
plaintiff deemed insufficient. Wherefore the
platDtiff prayed that the defendant might be
ordered :
(a) To deliver to the said plaintiff the
feathers of the said twenty ostriches as set
forth in plaint of this summons or in default
thereof to be adjudged to pay the sum of £10
sterling for damages.
ik) To deliver to thesaid plaintiff the feathers
of one ostrich as set forth in plaint two of this
summons, or in default thereof to be adjudged
to pay the sum of £1 lOe. sterling, together with
interest a tempore morae and costs of suit.
The following was the agreement signed by
Rademeyer atd annexed to the sainmons :
" I herewith promise to sell ostrich feathers
to Mr. Shear at £i 8s. 6d. per 100 just as the
feathers are plucked, with white feathers, also
to pluck and deliver the last of the feathers in
October, 1896. I am ftill to receive the money."
Before the Resident Magistrate the defendant
by his agent took exception to the plaintiff's
summons as follows :
1. That ttocause of action is disclosed in said
summons, thereby prejudicing defendant's
defence.
8. That the said summons is entirely at
variance with the written agreement between
plaintiff and defendant and annexed to said
summons. Wherefore defendant prayed that
said summons be dismissed, with costs of suit.
The Resident Magistrate upheld the excep-
tion for the following reasons :
The reasons whioh the Court held and con-
sidered would prejudice Uie defendant in his
defence are that the summons is defective in
that it states that an oral agreement was
entered into between the parties at Uniondale
on the 24th March, 1896, and that this agree-
ment was partly ratified and confirmed in
writing at Sonterwater on the 2nd April, 1896.
Against this decision the appeal was now
brought.
Mr. Innes, Q.O.. for the appellant; The
summons clearly disoloees a cause of action.
It is not very artistic, but it is clear what are
the grounds of plaintiff s grievance. He sues
upon the oral agreement and annexes the sub-
sequent written contract ; which was unneces-
sary, as the document might have been put in
as evidence at the hearing. It is clear that
what the plaintiff means by saying that the
oral agreement iM9*% ratified the verbal under-
48
Btaading ii that the dooumentwM incomplete,
M it did not stnte the nninber of birds. The
annexing it to the Bummons does not ernhnmss
plnintiff; it is not InoooBiBtent. The Boramons
does myt mention the purchaee price but clnims
dnmagee. The Bosident Mngistnte^B reneons
are abnurd.
Mr. McGregor, for the retpondcnt: The sum-
mons is bo prolix a« to be actnally embarrasBing
and prejudicial to the defence.
Buchanan, J.: It rather henefltB you; the
plaintiff BhowB his hand.
TheBummouB diBoloBCB no eauBe of acUon.
Plaintiff founds on a contract for the sale of
ostrich feathcTB to be deliTcred in April and
October. There his claim ifl for things not yet
in esse: it appeared to be in the nature of
emptio ret op^ratw. That being so, there must
be an allegation that at the respective datr s
when delivery could be claimed, there actu«IlT
were feathers m eMe and deliverable. Pptkoer
on 8aiet p. 6; MeyW$ Civil Lam of Sale, p. 81).
Further, there was no allegation that any price
had been agreed on, nor was any price
mentioned in respect of the agreement of March
33 and 24. But that was the agreement sued on,
as appeared from the remarks of appellant's
counsel also. It is clear law that without any
agreement as to price the emptio ic t#»-
perfeeta. The written agreement of 2nd
April mentioned a price, but that was not
the agreement founded on, and there ttie
number of the birds was not mentioned.
Plaintiff should clearly state in hiB summons on
what agreement he founded ; as it stood it was
impossible to fix the time at which it alleged
that there was mutuality. Begarding second
count: Amount in dispute really is only 16s.
(vide tender) and if the appeal were only
allowed as to that rmall amount that phould
not alEect the question of costs : Klopper v. Van
Straaton (ilJ^ 90-
The appeal was allowed with costs.
The Chief Justice gave judgocent. He 8a*d :
There have been two exceptions to the summons
in this case. The first is that no cause of action
is disclosedt thereby prejudicing the defence,
and the seoond is that the summons is
at variance with a written agreement
entered into between the plaintiff and
the defendant* Now there is no doubt
that the summons is exceedingly prolix.
It is inartistic and not such as one
would expect from a practitioner of this Court :
but we must consider the dreumstances of tiie
country, and the circumstances under which
Magistrates' Courts are held. Agents are allowed
to practise who have no experience, but what
the Court has always required is that the defen-
dant may know from the sammons the case he
is called upon to meet. Now although this
Buromons is somewhat lengthy, I think there is
no difficulty in ascertaining what the plaintiff
really sued to recover. The main objection is
the first exception. Now, reading the summons
as a whole, it is quite clear that the plaintiff
alleged: I bought from you the feathers of
twenty birds, when th^ were plucked, at
£1 as. 6d. a bird. That is really what it comes
to. You have to read the whole of the summons
in order to come to that conclusion. If
the defendant wished to prove that
these birds bad no feathers, it was quite
competent for him to plead thus : It is quite true
I sold to you the feathers that were to be plucked,
but it so happened that those birds have not
produced any feathers. Probably that would
have been a good defence. When It comes to a
question of pleading it appears to me suflloient
if it is stated that the feathers of certain tweoty
ostriches were sold at £1 te. 6d. a bird, ike
presumption being that those ostriches would in
the ordinary course of nature bear feathers, and
I don't think it was n eco s sa ry to allege tbat
those ostriches did bear feathers. Therefore mi
this point of pleading I am of opinion that the
exception cannot be sustained. Then a second
exception is raised with regard to the summons
being at variance with the written agreement,
and that is the ground upon which the Magis-
trate based his judgment. 1%ere was a com-
plete oral agreement, but afterwards when they
came to state in writing what they
had agreed upon, they omitted to
add what was in their minds, via.,
that the feathers were the produce of twenty
ystricbes. All that seems to have been agreed
before, but they omitted it in the written
»ment, thinking that both would rememl>er
lat they were contracting with regard to the
ithers of twenty birds. Well, I don't see how
ihe omission of *' twenty " in this subsequently
Written agreement can in any way prejudice the
defendant* This writing was not intended to '
fmbody the whole of the contract. It is not I
ike a case where the Court has held tbat a '
Irritten contract must be deemed to have om- ;
bodied the wIh^ of the oral contract. I think \
jhU is really too technical an ohjeetion,
feind full justice would have been done by the
Magistrate by going into the mutter. We mnat
aUow the appeal witti costs, and remit the
{safe to the Magistrate to be heard on its merits,
ihe costs in the Court below to be costs in tbe
use.
[Applicants* Attorneys, Messrs. Walker ft
Jacobsohn; Bespondents' Attorneys, Meears
Van Zyl A Buiasinn^.]
c
49
SUPREME COURT.
■Before the Right Hon. Sir Henry dk Vil-
UttS, K.C.M.Q. CCliief Justice), the Hon.
Mr.Jaalice Bucmanajn, and the Hon. Mr.
Justice Maasoob.p.3
In. TC «. T. WINQCT8T. I F,^^%t,,.
Hr. Graham appeared on behalf of the
oediton in the inisolvent estate of Broest
Theodore Winqaiat, wine and spirit merchaDt,
of Plein-Btreet, and aerated water <xianufac-
tirer. of Someraet^road, and aoplied for the
appmaimeiit of Bir. James Jackson Bolam as
proviiioaal trustee, in order to carry on the
bwlnesB. The assets in the estate were valued
It £a,OlV, and the liabilities amounted to
£i,OfiS, the petition being signed by creditors
lepRsenting claims to the amount of over
The application was granted .
HAUPT V. HAUPT.
\ 1^
(Feb.
Marriage — Minor — Fraud — Hestitu-
tiou — Matrimonial domicile — Cora-
inuuiiy of property.
Th^ man^Hige of a minor munt be
deemed to be valid uniil annulled ht/
judgment of a competent Court,
yfiuonty i» not per se sufficient
^r€fiind for annulling a marriof^e.
If either party is entitled to restitn-
ttoa by reason of the fraud of the
other, proceedings mnst he taken
within a reasonable time after dis~
cftrery of the fraud.
The matrimonial domicile must
dei'ide whether the marriage is in
community or not-
The parties having gone fo England
wciih the intention of returning to this
colony and residing here, the mar-
rrage Uwk place during their
temporary residence in England;
Held that this Colony was the
matrimonial domicile, and that, in
the absence of an ante-miptial con-
tract, the marriage was in com-
munity of goods.
1897.
10th.
This was an action for divorce instituted by
Mrs. Johanna Maria Haupt against her hus-
band, Pierre Fransoi^ Haupt, on the ground of
his adultery.
The plaintiU's declaration set forth :
1. The plaintiff resides at Mowbray, in the
Cape district; the defendant, her husband,
resides at Cape Town.
2. The plaintiff and defendant were legally
married at the parish church of St. Maryle-
bone, in London, on 3rd Mar, 1882. The Raid
marriage still subsists, and there were born
thereof six children ; to wit, four boyH and two
girls all minorK.
8. At the time of the celebration of the said
marriage both the plaintiff and the defendant
were domiciled in the Colony, and the .said
parties were married in community in
accordance with the law of their domicile,
4. In or about July, 1S96, at Cape Town, and
subsequently on board the U.S.S. Greek, and
thereafter during the years 181*6 and 1897, and
more particularly in January. 1897, at Cape
Town, the defendant committed adultery with
one Annie Steele.
The plaintiff claims :
(a) A decree of divorce
(ft) A division of the joint estate, including
therein the defendant's life interest in respect of
certain interest, income, and dividends accruing
under and by virtue of the ^ill of the late
Daniel Egbertus Haupt.
(^) Custody of the children.
(rf) That the defendent be ordered to pay the
sum of £100/;^?' annum towards the support and
maintenance of the said children.
{p) Alternative relief and coBts of suit.
The defendant was barred in default of filing
plea. The defendant admitted (in court)
the adulter}', but contended that there was no
community of property, and that themariiage
with the plaintiff was not a legal one on account
of the fact that he was not of full age at the
time.
Mr. McGregor appeared for the plaintiff, and
the defendant conducted his own case in peraon.
Johanna Maria Haupt, now residing at Mow-
bray, said that she was born at Drakenstein in
the Colony, and her maiden name was also
Haupt. She left the Colony before she was
married to the defendant, who had lived in the
Colony up to that time. They went to England
together, and were married at St. Marylebone
parish church about a month after their
arrival in England. The defendant was
supposed to be studying for the medical
profession. They remained in London while
the defendant was studying for about five
years, and then the defendant came out to
60
the Colony, and she followed him. There
were six children of the marriage, four of whom
were living with witness, while two of the boys
were taken away recently by the defendant. The
eldest child was fourteen years of age. While
they were in England she and her husband, who
were cousins, were supported by an uncle, who
remitted to them a sum of about £200 to £260
per annum. Witness had been permanently
separated from the defendant since June, 1896.
She knew a certain Nellie Steele, and recog-
nised her photograph (produced]. She was
staying at Newlands, opposite witnesses house,
and witness nad seen her on one occasion quite
drunk in the afternoon. Since June she had
seen Nellie Steele in company with the
defendant and the two boys.
The defendant, proceeding to cross-examine,
aeked the witness whether she had ever mis-
conducted herself before her marriage.
The Chief Justice: Ton cannot put that
question. Tou have not pleaded misconduct.
Cross-examination continued: She was
married in May, 1882, and her first child was
bom five months after the marriage, the
defendant being the father. She had condoned
all previous offences by the defendant up to last
June, and had condoned certain offences when
he returned from the Transvaal.
By the Court : She wished to have the custody
of all the children, but she had no means of her
own to support them, and was dependent on
what the defendant could give her. She
thought she could maint<ain the children on £30
a month.
Fre-'erick Orken Cheese, porter at the Royal
Hotel, stated that he knew the defendant fifteen
years ago, when he was living in England with
Mrs. Haupt as a married man. In June last
the defendant came to the Royal Hotel with
Nellie Steele, and they occupied the same room
there, giving the names of Dr. and Mrs. Haupt.
Since then he had seen them together at the
Railway-station.
Cross-examined : He c«tuld not say whether
there was another Mr. Haapt staying at ike
hotel at the time.
George William Steytler, secretary of the
Colonial Orphan Chamber, said he was trustee
und«r the will of the late Daniel Egbertus
Haupt. Defendant had a life interest under
that will, and received half of the total aonual
income from the estate, which amounted to
about £1,000. The other £500 went to Daniel
Haupt Brown. An arrangement had been made
between the parties by which Mrs. Haupt re-
ceived £17 a month and Mr. Haupt £7 a month.
The defendant had surrendered his estate, and
a loan had been raised to extinguish
the debts, and defendant had Insured his life to
secure the loan. The defendant's debts would
be finally extiuguished in twelve or thirteen
years. At present the creditors were receiving
the net income less £24 a month.
CroBs-exa mined : For the last six months he
had paid the £7 a month to Mrs. Haupt on the
defendant's instructions. Mrs. Haupt was the
revisionary legatee after her husband's death .
He was not aware that there was another bond
of £2,^)00 upon the defendant's life interest.
By the Court: The payment of the £7 a
month to Mrs. Haupt had been stopped since
January. The defendant had been insolvent,
but all his liabilities had been discharged by
witness.
The defendant then entered the box. He said
that he was married on May 8, 1882, and was
then fifteen years of age. His present age was
twenty-nine. He ha'i no means to go to
England. Plaintiff took him to England, bat
he did not know where she got the means from.
She there forced him to marry her and he
found himself married before he knew what he
had done.
The Chief Justice : But there is no plea of
fraud or anything of that kind.
Defeudant (continuing) said that in the
August after the marriage a child was bom
Their married life had always been of a very
unpleasant nature, both here and in England.
He was not in a position to take steps to have
the marriage declared illegal, and had had no
means since his birth till the legacy came to
him.
The Chief Justice : But you declared that you
were of full age when you were married.
The c'efendant said he remembered making
no such declaration. He had received notice
that morning of the intention of the mortgagee
(Daniel Brown) to foreclose in respect of the
bond for £2,000 on his life interest.
The Chief Justice : But there is a complete
cession to Mr. Steytler. How could you cede it
to a second person.
Cross-examined: Daniel Brown was a co-
legatee under the will.
Defendant, on leaving the box, and arguing
upon the case, contended that his wife had not
looked after the children, whom he had found
in a state of neglect. She spent her time ^in
going to religious meetings and Salvation Army
meetings. He had no means, and only made
enough to keep himself by an occasional specu-
lation.
A decree of divorce was granted.
De Villiers, C.J. : The defendant denies the
validity of the marriage, but I am satisfied that
it was perfectly legal. He declared himself at
51
/
fitttaiaetobe of fiill wl^^ mud, in the absence of
#By proof to the oont-rttry l>eyoiia his sUtement
f^ witness l>ox, w« mlls^ &8«ume thit the
*«iiitK)nifms true. Bult even if he was not
«j«e, his marringe nrast l>e deemed to be valid
JWitiB annulled by jiulsment of the Court,
tttemmorityatttic time of lii 8 marriage would
■wbyiteiilf ^Ave lieen Bufficieot ground for
^Tig him of tHe l)oii<l^ of marriage : see
»»rt (4, 4, Ah\ If by- frmud he had been
^Iv ^^ * marriage with the plaintiff
•wwut his father's consent, he would have had
gwxl gronnd for restitution, but only within a
rnwnable time after dit^covery of the fraud
Ao siepi^ of any kind were taken, and now'
after scleral years of marned life and after six
chiWiea haire been bom of the mar-
^»t^ he Eeehs to raise this somewhat
««eaiUh\e defence to an action for divorce.
The next question is whether or not the
pailies were married in community of property.
Xo ante-nnpiial contract wag executed and]
Ukerefore, if their matrimonial domicile was in
thia colony their marriage must be held to have
been in community. The marriage took place
in England, but according to the plaintiff's
eridence, which I believe, the parties had gone
there with the intention of returning to the
Cokmy and rcBiding here. Their relations
lived here and the defendant's object
in going to England was to study there
for the medical profession. Clearly
therefore the Cape was the matrimonial
dcHnicile, and in the absence of a contract the
marriage must be held to have been in oom-
manitT. The adultery having been clearly
proved, the plaintiff is entitled to a decree of
divorce and to a division of the common
•■tale. The Coort will give her the custody of
the minor children and order the defendant
to p^y her the sum of £1 IQb. per month, in
reepect of each child, until such child shall reach
ttm age of sixteen.
Buchanan, J., and Maandorp, J., concurred.
Jndlgment for plaintiff accordingly.
fPIaintiff's Attorneys, Messrs. Fairbridge,
Ardeme k Lawton. J
SUPREME COURT.
I Before the Right Hon. Sir J. H. de Villiebs,
P.C, K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdo&p.]
PROVISIONAL ROLL.
TEUBSB V. If ArrfiBWS.
J 1897.
I Feb. nth.
Mr. Jones applied for provisional sentence on
a mortgage bond for £30, with interest at the
rate of 8 per cent., from March 1, 1886. and that
the property might be declared executable.
Granted.
DB YILLIBBS Y. BUBQBBS.
Mr. M askew applied for provisional sentence
on a promissory note for £203 12s.
Granted.
8AMB0N y. BAMBON.
This was an action for divorce, instituted by
Johannes Adam Samson against his wife
Katherina Maria Samson, by reason of her
adultery with one Joseph Adams. Plaintiff
claimed a decree of divorce, the custody of the
minor children, and the forfeiture by the de-
fendant of her rights in respect of her marriage
to plaintiff in community of property.
Mr. Close appeared for the plaintiff; de-
fendant was in default.
Reginald Douglas Herold Barry proved the
marriage between the parties, which took place
at Beaconsfield on June 30, 1891.
Johannes Adam Samson, the plaintiff, said he
was married at Beaconsfield to the plaintiff, and
tiiere were two children of the marriage aged
four and two years respectively. A man named
Joseph Adams, his cousin, lived near him at
Kimberley, and was very intimate with him.
About two years after Adams came to Kimber-
ley, in consequence of what he heard, he spoke
to his wife, and told her not to put Adams's
room in order which she was in the habit of do-
ing. Subsequently his wife Went away to her
mother, and witness fetched her back, but she
again left him. He had property when he
married, but his wife had none.
The Rev. Thomas Haylett^ minister of the
Dutch Reformed Church at French Hoek, said
he was formerly a minister at Beaconsfield, whera
plaintiff was an elder in his church, and was a
very steady man. On returning to Beaoons-
fteld he made inquiries, and found
52
that the plaint! If *8 wife had goae
away to Bast London. Witness proceeded
to that port, and found the plaintiff '» wife
liring with Adams. They admitted that they
were living together as man and wife; Mis.
Samson admitted that she was pregnant, and
Adams said that he was the father of the child.
A decree of divorce was granted, the plaintiff
to have the custody of the children, and the
defendant to forfeit her rights in respect of her
having been married in community of property.
[Plaintiff's Attorney, V. A. van der Byl.]
CRUYWA(JKN V. OOID.
} 1897.
/Feb. nth.
Uule 333 — Documents — Inspection.
A defendaiU havfn^ in ht'jf plea
slated that the cotUents of a certain
document in his poifsession relating
to matters in f/uestion in the action
had been supplied to th-e plaintiff:
Held on an application under the
333rrf Rule of Court, that the
defendant was hound to give inspec-
tion of such document to the plain-
tiff, who had not had sufficient
opportunity to take a copy of the
document.
This was an application by the plaintiff
(John Jacob Cruywagen) in a pending action (in
which a plea had been filed by defendant) call-
ing on the defendant Emily Qoid to show cause,
if any, why she shall not be ordered to allow the
plaintiff to inspect and make a copy of the
report referred to in paragraph 4 of her plea.
The action was one to recover money due for
certain work performed by plaintiff in con-
structing a building for defendant which, the
defendant alleged was constrncted in a defective
and unworkmanlike manner.
The following affidavit was filed by plaintiff's
attorney, Mr. G. M. Walker :
1. The pleadings in the above matter have
been closed, and I crave leave to refer this
Honourable Court thereto as filed with the
Registrar.
2. The defendant in paragraph 3 of her plea
alleges that the work for which payment is
sought by the plaintiff was performed in an
unskilful, negligent, improper, and unwork-
manlike manner and not according to the
contract; also, that said work was left
unfinished by the plaintiff ; and, in paragraph 4
thereof, she alleges that she has called upon the
plaintiff forthwith to complete the said work
according to contract, and remedy the defects
therein as set forth in the report of an architect
which was duly supplied to the plaintiff.
3. Acting on the advice of his counsel \h.e
plaintiff of date 25th January, 1897, called on
the defendant through his attorney under Rule
of Court 333, sub-section (if), to produce for hia
inspection the architect's report referred to in
paragraph 4 of her plea aforesaid.
4. The defendant has not complied with the
requisition of the said notice, nor has she in
any respect complied with sub-section (/), of the
said Rule of Court
5. Not receiving any response to the said
notice, I twice personally interviewed the
defendant's attorney and made request for an
inspection of, and for leave to copy the said
report, but without result. The said attorney
declined to allow any copy of the said report to
be made or any not€S thereof to be taken,
alleging that the report formed his case, and
that he would not comply with the requisition
of said notice, save under order of this Honour-
able Court.
6. I am aware that prior to the action brought,
the said attorney verbally communicated to the
plaintiff thegist of the said report, but the plain-
tiff cannot recall its many details, and it is
absolutely necessary that he be permitted not
only to inspect, but to make a copy of the said
report. But no copy of the said report has ever
been furnished to the plaintiff.
7. To enable the plaintiff to meet the case aet
up by the defendant, it is in his and his counsers
view ne«essary that a copy of the said report
should be obtained by him.
The following answering affidavit was lodged
by defendant's attorney, Mr. J. C. de Korte :
1. The architect's report referred to in the
above affidavit was obtained by the respondent
for her own information.
2. The said report was submitted to the appli-
cant for his information and perused by him in
deponent's presence in September last. That
the applicant after perusing the report,
deponent has been informed, called on Mr.
Vixseboxse, the architect, who drew up the
report and requested him to alter the same so
as to enable him to obtain payment of the
alleged claim.
3. After the notice referred to in the above
affidavit had been served deponent met the
applioatn's attorney in the Public Buildings,
Cape Town, and offered to allow him to inspect
.the report, and informed him that deponent
could not allow him to take a copy or notes
thereof, as the report contained a portion of the
respondent's defence to the action.
63
iihe reepontient ^will V»e prejudiced in her
deleace to the action if sUe alloinred the appli-
eanucopy oi the eaid report, mud that the said
trcbiteci ( B&r. V iiLseboxse > iw i 1 1 b« prod uced at
Ui£ trial aa aw itneBs on l>ebi.&i£ of the defence.
a. Deponent verily believes ttiat the reason
theip^cantia bo fiesirous to have a copy of
tbe report is to give bim a a opportanitj to
itqaire into tiie evidence the respoodent
iateocU to produce at the trial aod thereby
cnabte b'lm to prepare his evidence for Ihc
trial
Hi. ftchreiner, Q.C., for the applicaot: The
pilea stateg that the defects complained of in
refaid to the building are mentioned in an
•ichiiect'a report "*' which has been supplied " to
tike plaintiff.
The Chief Justice : But could you claim to
aw it if there were no mention of it in the
plea?— They could not nee the report in evidence.
Mr. Schreiner: We could at least have got
particulara. The report now ia part of the
rn gestae. Practically their whole case is in
the report. See Rule 333, sub-aectiou {d). We
do not know what case we have to meet.
Mr. Searle. Q.C., for the respondent : Clearly
the rule does not apply in a case like this. We
have not to make a case for plaintiif to meet,
nor make his case for him. Even if the words
rela^ng to the architect's report are struck out,
the plea will he a perfectly good one. The
applicants have had all the information they
want, the mention of the report is a mere
Mirphisage in thp pleadings.
l>e Villiera, C.J. : Prima facie when reference
ia made by either party to any document which
relates to matters to question in the action the
c»pposite party is entitled, undei Rule 333, on
doe notice to inspect the documeut and make a
cop3' thereof. The party to whom notice has
Ijcen ^iven may object to the inspection,
but he must state the grounds of his
<»bjection. One valid ground would be
that he would be unjustly prejudiced
hv allowing the inspection, but this ground is
taken away from under the defendant's feet by
his own statement in his plea that the contents
of the document now in question had lieen
■applied to the plaintiff. It appears that the
plaintiif had not sufficient opportunity to make
kimflelf acquainted with the contents, and he
most now be allowed to inspect the document
and take a oopj thereof. The application is
allowed with costs.
Their lerdships concurred.
[Applicant's Attorneys, SicssrH. Walker «b
Jaooteolui; Beepondent's Attorney, J. C. de
Eoiie,]
MAMA V. MAGI8TBA1£ OF ( 1897.
UEBSCUBL. ( Feb. nth.
Review — (J ross irregularity — Native
Locations Act.
Where a person charged in a Magis-
trate's Court with a criminal offence
shows good ground to the Clerk of
the Court that the Magistrate is a
necessary and material witness for
the defence, the refusal of such
Magistrate to allow his c'erk to issue
process to compel the attendance of
such witness, under the 60th section
of Schedule B to Act 20 of 1866,
constitutes a ground^ if objected to at
the trial, for setting aside a conviction
by the same Magistrate.
This was an application to have certain
proceedings which took place before the Resi-
dent Magistrate of Uerschel on the IGth June,
18U6, reviewed and set aside.
The case in ((uestion was one in which
Shadrach Boyoe Mama, Elizabeth Mama, and
Ignatius Mama were charged with contravening
section 20 of Act 87 of 1884.
At the hearing before the Resident Magistrate
on the 16th June. 18D6, the following evidence
was inter alia led :
Charles Joseph Dovey, Superintendent of
Natives in the Herschel district, stated that
upon instructions he went to Mama and
inquired by what authority he was living in the
location (Ngesiman's location). Mama stated
that he and Kgesiman, the headman, had seen
the Resident Magistrate at his office and
obtained his authority to live there. He (the
superintendent) had never had any application
from Mama for leave to live there, nor had
he given such leave. Subsequently Mama
repeated that he had the Resident Magis-
trate's permission. Upon the Resident Magis-
trate's instructions Mama and the headman
were brought to the Resident Magistrate's
Office on the 3rd June, when an interview took
place. The Resident Magistrate asked Mama
why he had alleged that the Resident Magis-
strate had given him permission to live in the
location. Accused admitted he had alleged it,
and maintaineil that this wan true. The Resi-
dent Magistrate said that it was absolutely
false ; and warned Mama to leave the location
in seven days. Mama did not leave. All
natives had to obtain the Resident Magistrate's
permission to live in a location through
witness.
/
54,
NKesiman, the headman, ntated that he had
gone with witneBs to eee the Resid nt Magis-
trate in Decern her, 1896, about accused living in
the location ; and that he alone saw ihe Resi-
dent Magistrate CMama staying outside). The
interpreter was the only other person present
The Resident Magistrate gave him permission
for Mama to live in the location ontside the
magisterial reserve. He (the headman) in-
formed the superintendent, who then pointed
out the spot where Mama < ould build his house.
Silas, the interpreter, stated that he was
present at the conversation in December. 18.>6,
between the headman and the Resident Magis>
trat«. The headman asked for a site for Mama
to build on. The Resident Magistrate asked
whether the sit-e was in the magisterial reserve
or outside. Ngesiman stated it was in the
location. The Resident Magistrate then told
him to go to the superintendent, but gave no
permifsion whatever to build.
Thompson Smith, a trader, called for the
defence, stated that a fortnight before the trial
he had a conversation with Mama, who told
him the Resident Magistrate had ordered him
off the native reserve. Witness asked him
how it was that the Resident Magistrate had
given him permission to live there. Mama
replied that it was a lie t at he had told ; as he
had really only received the headman's per-
mission.
Shadrach Boyce Mama, the accused, stated
that he was an enrolled agent practising in the
Resident Magistrate's Court, Herschel. He
acknowledged that he had only applied to the
headman for leave to live in the location. He
had not known he had to see the Resident
Magistrate and he had never got the Resident
Magistrate's permission to live there.
** The accused was found guilty of being in a
native location without authority*' and
ordered to remove from the Herschel native
location.
On the 4tb December, 1896, Mama made an
afhdavit stating that previous to toe hearing of
the case, he presented subpoenas to the Clerk of
the Court for issue, calling the Magistrate (Mr.
F. Whitham)as a witness for the defence ; that
the clerk insisted on consulting the Resident
Magistrate before issuing the summons, and
that thereafter the clerk informed deponent
that the Resident Magistrate declined to
allow hi >.iself to be subpoened; that at
the hearing of the case, deponent's attorney
requested the Resident Magistrate to recuse
himself 02 the ground of his being prejudiced
in the matter ; that the application was refused ;
that the headmaa was at a Bubse<iuent Circuit
Court tried for perjury al eged to have been
committed at this trial and acquitted.
The Resident Magistrate in an answering
affidavit denied that any statements made or
acts done by him were of such a nature as to
prejudice him in any way or to render him
incompetent to try the case ; that he was never
properly rescued; or that there were at any
time any grounds for such a step, that he had
never improperly consulted with or advised the
Clerk of the Court. He stated that on the
clerk showing him the subpoena for him (the
Resident Magistrate), Mama was sent for. The
Resident Magistrate informed Mama that a
mere request to subpoena the Magistrate was
insufficient to justify him in asking Govern-
ment to appoint another Resident Magistrate
to try the case; that he was ignorant of aoy
evidence that he could give for Mama,
and that under section 69, schedule B, Act 20 of
1856, he must be informed as to the nature of the
evidence which was required from him to
satisfy himself that it was material and neceB-
sary for the defence; that the application
would then be considered. Mama left, and did
not approach him again. At the trial defen-
dant's attorney referred to Mama's request to
subpoena the Resident Magistrate ; the latter
thereupon answered him in the same terms aa
above, stating that he was th^n still prepared to
consider the application ; that defendant's
attorney stated that he was not prepared to
show grounds and did not press the.application.
The Resident Magistrate denied that his action
was in any way malicious.
The summons for review called upon the
Acting Attorney -General to show cause why
the judgment and proceedings should not be
reviewed and set aside on the following
grounds :
1. That the said Magistrate (Fred. Whitham)
was incompetent to try the said case by reason
that statements made and acts done or alleged
to have been made or done by him were of the
essence of the question tried by him.
2. That the said Whitham was duly and
properly recused, but nevertheless insisted on
hearing the case.
3. That there were gross irregulariUea in the
proceedings in that the defendant desired to
subpoena the said Whitham as a witness, but
that the Clerk of the Court refused to issue the
subpoena ; that said Whitham improperly con-
sulting with and advising the said clerk before
the hearing of the case with regard to the issue
of the said subpoena.
4. That legal and competent evidence was
thus excluded.
5. That there was no evidence before the
Court on which the accused could have been
properly convicted.
65
IThiithemctioik of tlie 8 Aid Whithsm was
■tfiooiu, and ttiAt- tHo proceed ings were in
otberreipecUsioe«.ly irregular and contrary to
Itv.
7. That the aeotence | a8t»ed by the tiaid
Whitham, viUinK as Rc«^ideDt Magistrate, was in
execno! his ^iLTiadiction, inasmuch as he had
no authoriiy to order Ibe removal of the
teeoKdiioia the Uerectiel native reserve.
The gammons also called on Mr Whithain to
dww tause why be should not individually pay
the a»ti of the proceedings.
The foWowing waB the Proclamation by Sir
Heniy Hmith Ciseued on the 3 let July, 1850)
eoD tiUitmg the Herechel reserve a native
looatioii :
WheT«aa I have deemed it expedient to include
in the diTi&ion of Albert, the country occupied
bj ceriaia Ahongines attached to the Wesleyan
MiaBMmary Station at the Wittebergen; now
therefore, I do hereby, in the name of Her
Maieaty, aubiect to Her Royal confirmation,
under and by virtue of the several powers and
aathoritiea in me veated, proclaim, declare and
make known, that the eastern boundary of the
diviaion of Albert ahall henceforth be defined as
eommeacixig (south) from a point (common to
the two divisiooa of Albert and Victoria) on the
amnmits of the Stormbergen, due north from
the moat easterly sources of the Witte
r> Ri^er rise, with the eame mountains ; the
i^Mindary shall then run in a directline to where
th<^ Kxaai river takes its rise in the Witte or
Orakenabergen ; from thence in a north-
westerly direction, along the summits of the
W^ittebergen, until the waters of the Wilge
River, henceforth to be known as the Teen, run
im a northerly direction to the Orange River,
the eastern bank of the Tees forming the boun-
dary of the Colony, from its sources iu the
IVittebergen *o its junction ^ith the Orange
River, which river forms the northern boundary
o€ the diviaioD of Albert and of the Colony.
And I do further proclaim, declare, and make
knowA, that all territory to the west of any
portion of the line aforesaid shall be, and the
wami Is hereby annexed to, and incorporated
with t^he Colony of the Cape of Good Hope, as
part and parcel thereof; and also, that this
whole tract, about 160 sciuare miles in extent, is
b«;reby designed and appropriated, subject to
Her Majesty's confirmation and approval, as a
*" native reserve." for the use of the Aborigines,
iM" persons of Native African descent, and that
BO farms or lands shall, unless otherwise
directed, he granted within that district to
fteraoos ot European race.
Mr. Graham for the appellant: The sum-
mooa is detective^ aa it charges the appellant
with an offence which is not created under the
section under which the action is brought, via.,
section 20, Act 27 of 1884. This section merely
points out the procedure to be taken where a
pereon is unlawfully on a location ; the Resi-
dent Magistrate seems to think that constitutes
an offence — which it cleirly does not. The
Resident Magistrate moreover was incompetent
to try the case as he was an impoitant witness.
Mr. Justice Buchanan : There is aothiog on
record to show that any objection was taken at
the trial.
Mr. Graham: In anv case it was a grots
irregularity for him to pit when the iraue in
the case was the correctness of his statements
as compared with those of another witness;
and it was an exclusion of evidence for him
to sit when it was a question of his oath
against that of another man. See Ordinance
40 of 1828 section 5 ; see also ItcgiHa v. 7amato
(6 Shell, 11). Further, the Renident Magistrate
exceeded his jurisdiction in regard to the order
which he made.
Mr. Sheil, Acting Attorney-General, for the
respondent: The summons is good in form ; the
part which charged applicant with a contra-
vention of section 2 i in mere surplusage. The
Kcftident Magistrate is alleged to have rejected
competent evidence ; but the defendant Hhould
have recu&ed the Resident Magistrate and have
had the objection noted on the record. Xoeh v.
Zackan and Jleside/U Mttt/iittrate, Van Rhyn't
Dorp (5 Sheil, ISo), No specific ground for
review is now clearly alleged. The test is not
were the proceedings irregular merely ; but
were the proceedings grossly irregular 1 If the
Resident Magistrate had given evidence he
knew well that he could not give it for the
defendant. If anything was irregular as to
not issuing summons— it was a dereliction of
duty on the part of t^ie clerk, not a grois
irregularity by the Hosident Magistrate
The district of Herechel has been reserved, and
as such is a location under section 7 of the Act
27 of 1881 {vide Proclamation, Sir Qetrge W.
Smith, August 1, 1850). Even if it is not the
matter should have come before the Supreme
Court by way of appeal not review. In the
absence of the proclamation the place where
Mama erected his house could not be called a
location by itself, but the entire Herschel
reserve (in which the site is) was at the time of
the passing of the Act of 18vH4 a location.
Mr Graham replied.
De Villiers, C.J. : I wish to remark at the
outset that the Magistrate has, in my opinion,
acted with perfect good faith. He believed
that his evidence could be of no assistance to
the accused, and he therefore refused to allow
66
hii clerk to issue process to compel his own
attendance as a witness at the trial. He lost
sight, howeTer, of the fact that, from the point
of view of the defence, the evidence was
material and necesBary. He knew that the
headman of the location asserted that he had
heen told by the Magistrate that he could allow
the accused to settle in the location. If this asser-
tion was true, then clearly the accused could
not be said to " have no right or authority to be
In the native location'* in terms of Ihe 20th
section of Act 37 of 188i, under which the
prosecution took place. It is said that the
evidence, if given, would have been adverse to
the accused, but he had a right at all events to
claim that such evidence should be given under
oath and subject to cross-examination. This is
not a case, such a» frequently comes before the
lower Courts, in which the competency of the
Court to try the case is challenged on frivolous
grounds. The accused, fortified as he was by
the evidence of the headman, was justified in
regarding the Magistrate as a necessary and
material witness for the defence. At the trial
the objection that the Magistrate had refused
to allow a subpoena 1o be served on himself was
taken and practically disallowed. After the
accused had been convicted, the headman was
charged with perjury, but he was acquitted.
All this (hows how important it was that the
Magistrate who tried the case should not have
been one who could give material evidence, and
whose evidence, if given, would, on a most
important point, have been at conflict with that
of the headman who was a witness for the
prosecution. It was a gross irregularity,
under the circumstances, to refuse the i' sue of
the process and thus prevent the accused from
objecting to the competency of the Court, or
from having the evidence recorded of a witness
whom he honestly and reasonably regarded as
being a necessary and material witness for his
defence. The judgment and order of the Magis-
trate must be set aside, but as he acted in good
faith there will be no order as to costs.
Mr Justice Buchanan concurred. The
irregularity, he said, consisted in the Magistrate
refusing to allow himself to l>e subpoenaed as a
witness. The Magistrate was a material wit-
ness in the case, and being a material witness,
ought not to have sat and tried the case.
Mr. Justice Maasdorp concurred.
[Applicant's Attorneys MeHFrs. Fairbridge,
Arderne ^^ Law ton.]
SUPREME COURT,
[Before the Right Hon. Sir Henby db Vli.-
Li BBS, K.C.M.Q. (Chief Justice), the Hon.
Mr. Justice BuGHANAM, and the Hon. Mr.
Jutftico Maasdobp.]
IN THE E8TATJE OF JOHN KVBBKTT |
ME8TAEB: THB PETITION OP J 1897.
CHABLB8 WALTEB M EST ABB j Feb. 12th.
KIBCHHOFF. f
Will — Bequest — Discrep ncy in name —
Intentiou.
A testator bequeathed by codicil a
sum (if money to " my ffodson^ Charles
Walter Meslaer^
The testator had only one godson^
whose correct name was Charles
Walter Mestaer Kirchhiff; and no
jyerson answering to the legatee*a
name was known.
The executor refuspd to pay to the
godson the amount of the bequest but
/mid the money into the Guardians'
Fund; and the Master similarly
declined to pay to the godson.
The Court ordered payment to be
made to Charles Walter Mestaer
Kirchhoff,
This was an application by Charles Walter
Mestaer Kirchhoff for authority to the Master
to pay out to petitioner, for whom it was in-
tended, the sum of £56 7s. 4d., standing to the
credit in the Guardians* Fund of Charles Walter
Mestaer, out of the estate of his godfather.
John Everitt Mestaer.
The applicant's petition set forth :
That y< ur petitioner is a son of George
Joseph Kirchhoff and Mary Ann Kirchhoff.
That at the time of your petitioner's baptiBm
one John Bveritt Mestaer, a great friend of the
petitioner V family, asked to be allowed to and
did stand as godfather to your petitioner.
That the said John Everitt Mestaer signed as
a witneFB to the said baptism, as will ap|)ear
from the copy of baptismal certificate hereunto
annexed.
That in his baptismal certificate your peti-
tioner is called Charles Walker Mestaer, the
surname of Kirchhoff lieing omitted, aa in
customary.
1. That thereafter on the 2Cth May, 1873, the
said John Everitt Mestaer executed a codicil
l)equeathing to his godson Charles Walter
Mestaer the sum of onehundred pounds sterling,
as a legacy.
6?
.^1.
1 Ibtt in tbit^ codicil aB in the baptiemal cer-
ti&cate applicant is called merely Charles
Wilter Mesiaer, \>\rt your petitioner and the
penoQ designated Gliarles IV alter Mestaer in
the aud codicil are one and tbe fame p«nK)n.
3. J\aX the e<&late of the eaid John Ereritt
Uoiaer has now been finally liquidated and
£«tnbnied with the exception of ihe pro tata
^aie wbieh is dne to the person called Charles
Walter 'Ueetaer.
Thai according to the plan of the distribu-
tiga in the estate of the said John Everitt
Uestaer a anm of about £66 78. 4d. was shown
to be dne to Charles Walter Mestaer, the legacy
of £lQoha^ng to abate to that amount owing
to there not being sufficient funds in the said
otate to pay out the legac:es in full.
That the executor in the estate of the said
John Everitt Mestaer would not pay out the
moaer shown to be due to Charles Walter
Xetaer to applicant owing to the slight diB-
ciepancy in the names, and to get over the
difficulty the money was paid into the hands of
the Master of this Honourable Coart.
That the Master aforesaid will not pay out the
BBOBey to applicant without an order of this
UoBOOiable Court.
Wherefore yoar petitioner prays that your
lordahipe may be pleased to grant an order
aoAhonsing the Master of this Honourable
Court to pay out to him the said sum standing
to the credit of Charles Walter Mestaer in the
Guardians' Fond, or for such alternative relief
as to your lordships may seem fit.
The father of the applicant stated in affidavit :
that testator in his lifetime was very fond of the
appiicaot; that he was present when the codicil
was drawn up. and that all present understood
that the bequest was to applicant; that the
testator had no other godson named Charles
Walter Mestaer.
The Master reported •'
The Eom of £55 7s. 4d. was paid into the
Goardians* Fund on the 26th February. 1884, to
the eredit of Charles Walter Mestaer by the
ezeentor dative of the estate of the late John
Everitt Mestser.
I have refused to pay this amount to the
pctitiooer without an order of this Honourable
1897.
VAN NIEKBBK V. VAQAJX. i Feb. 12th.
16th.
r. I Fel
Mr. Close moved.
The application was granted, subject to the
Master being satisfied that the executor dative
raised no objection.
[Applicant's Attorneys, Messrs. Fairbridge,
Aideme k Lawton.]
I
Evidence — Books — Refreshing Memory
— Tradesman.
In an action for a debt brought by a
tradesman itix i/eart after the alleged
debt had been incurred^ he produced
hix boohs J which had been hept by his
assistant J but he produced no proof
that the assistant was dead or ill or
absent from the Colony^ or that he
himself had read the entries while the
transactions were fresh in his
memory. The defendant admitted
the purchases but alleged that they
were paid for at the time when made.
Held that the evidence was insuffi*
cient to prove the debt*
This was an appeal from the decision of th«
Resident Magistiate, Tnlbagh, in an action in
which the appellant, Henry Fagan,8nedthedefen*
dant, Jacob van Bcnen van Niekerk, for the sum
il9 7b., being £5 for goods sold m 1890 and 1891,
by plaintiff himself, and £4 78. for goods in the
estate of the late H. A. Fagan,8old to defendant
at public auction.
The defendant pleaded (1) the general ibsue ;
(2) that he had duly settled any indebtedness
for goods which he might have got from defen-
dant.
At the hearing before the Resident Magistrate
the plaintifl: produced the original day books
and ledger in which the entries in regard to
ths £6 claim were entered. The plaintiff stated
that the shop books were kept by his assistant.
He had called on defendant to produce his
receipts, which he was unable to do. He stated
that in 1892 he fell ill, and since then hod not
been able to attend to his business, and that in
consequence he had not since then been
able to call in outstanding amounts due to
him.
The assistant who kept the books was not
produced as a witness, nor was any evidence led
as to where he was.
The defendant stated that he paid for all
goods within a month of the dates of purchase
and obtained receipts. He never bought om
credit The goods purchased at auction might
have been purchased by his brother, but he had
not instructed his brother to purchase for him
nor had he received the goods.
68
Jadgment was given for £4. %. with cofitsi
abBolutioD from the iiiBtaoce being given in
rcBpect of £4 ISs.
The following were the Resident Magietrate^B
reasons :
In giving judgment the (Jourt came to the
following concluBion:
1. That although evidence was ltd on behalf
of the defendant fur the purpose of throwing
discredit on the books kept by plaintifiE, in
certain cases (never sued upon) the Court held
that the books were not altogether unreliable.
2. That the entries appearing against the
defemdant in this case appeared to be genuine.
3. That as the defendant admitted receiving
most of the articles in the shop account, but
failed to proiiuce a receipt and could not even
remember to whom the money was paid, the
weight of evidence was in favour of the plain-
tiff.
4. That absolution from the instance was
given on the ground that ao evidence was pro-
ducc<l t-o prove the cession of the vendu roll in
support of the item £4 7s., nor that defendant
instructed his brother to purchase the bag of
oats on his behalf for I Is., thus failing to prove
agency.
Against this decision the appeal was now
made.
Mr. Schreincr, Q.C., for the appellant: In
this Court we do it is true pay great attention
to properly kei)t books ; but they are not by
any means prima facie proof.
The Chief Justice : Yes, but doei^ the law of
Holland apply or is it supers«dedby the English
law of evidence? The question has never been
properly discussed here.
Mr. kJchreiner: In the tirnt place the books
are faulty in numerous instances, and the faith
given to a merchant's books implies that they
are carefully and accurately kept. Van
Leciifccn (Roman-Dutch Law, 5, 20, 11). More-
over, the practice has in our Courts been to go
in the opposite direction to the rules in force in
Holland, and though judgments under Rule
329 are often given practically upon the books
they yet are not specifically so.
Mr. Innes, Q.C., for the respondent: We can-
not contend that mere production of the books
will have the effect that it would have had
under the old law of Holland. But the books
are important evidence. The books once sworn
to by the person who made the entries are
evidence, so also if the owners swear feo their
correctness.
The Chief Justice : Declarationn in the
ordinary course of business made in books are
evidence, but only when the maker is dead.
Price V. Tarringtm (1 SaZk, 285).
Mr. Innes : Our practice has been simply to
wear to the correctness of the books. If the
English law prevailed, we would have to prove
not only the sale but ihe delivery. No objec-
tion was taken to these books being put in.
Mr. Schrriner in reply refen-ed to Vol. I.
Mcnziett (prefatory remarks on Provisional
Sentence, section 6, page 7) ; Best (on Kvidenco,
p. 442).
CA.V.
Postm ( February 16th.)
The Chief Justice, in giving judgment, said :
This action was brought in the Court below by
a shopkeeper to recover the amount of a debt
alleged to have been incurred as far back as
1890 and 1891. In proof of the debt the plain-
tiff produced his shop-books which had been
kept by his asBistant, but he did not call ihe
ak>siBtant to prove the correctness of the entries,
nor did he produce any proof that the assietaat
was dead or could not be found. Acoordin^ to
Van dcr Linden (Inst. B. 1, C. 17, section 2) the
books of merchants were admissible as evidence,
accor Jing to the law of Holland, provided they
were properly kept and confirmed by the oath of
the merchant. In support of this view he refers
to Voet '22, 4, 12), who says that, in favour of
commerce, the rule had been introduced that the
books of merchants, containing debit and credit
entries, constitute semi-full proof, and when
confirmed by the oath or death of the merchant
constitute full proof of the balance of his ac-
count, provided he be a man of good fame and
reputation. The difference between plena and
ieiniplen i probatio is practically obsolete in our
law, and accordingly wo find that the Dutch
rule has not been maintained in our Courts
In the case of OC(f*meU v. Stauder
(8 Mensies, 389) it was held in this
Court in the year 184L that a plaintiff mer-
chant's books, verified by his oath, are pgr se
insuflicient to prove the balance of account
claimed by him. It should be borne in mind
that, at the date of that decision, parties to a
suit were not competent to give evidence as
witnesses on tneir own behalf, and that the caee
is, therefore, no authority for holdisg that>
since the passing of Act 4 of 1861, a merchant
cannot prove the correctness of his books by his
own evidence. But the rule established by the
37th section of Ordinance No. 72 still holds that
" every party on whom in any case it shall be
incumbent to prove any fact shall be bound to
give the best evidence of which from its nature
such fact shall be capable." If the assistant
who made the entries in the plaintiff's books is
still alive— and there is no proof that he is not —
hia evidence that the books have been duly kept
and all credit sales duly entered at
59
t^t time wben tKe BAles were made
0^ wbile the tr&n.B«totion8 were fresh in
lui memory m-ould l>e ^lie l>eB^ evidence of which
^MBefidB are c&p&\>le. He would, therefore,
becstiUedto refresli YlI& memory by referriDg
tothehookB. If lie were dead bi£ entries made
utheofdinmry oourae o£ liusiness, at or near
the time wYien. tlie B&lee were effected, would be
endenee in the cuse. dit without proof of the
■■ictani'i de&tli -tlie plaintiff produced the
hofkA. If tbe plflkixitlff coald have sworn that
the entries were read Xty liioa while the trans-
trtioa» were treah in Ills memory, and that
whcA be read tbem he Ivne^w them to be correct,
he would also have heen entitled to refresh his
memory by reierring to the books, but evidence
to tlda effect is wanting. It is said that the
Asustaat, \1 called, would have been an
adTeiee witneaa, but that was no reason
for diapmaing with hi§ evidence. It
ia po a\\>\e lo conceive of cases in which books
iikig;bt be admitted aa evidence, without calling
the penon who kept them, although he he alive,
bni tbe pre&ent ia certainly not such a case.
There is no complication in the accounts, the
^etnand is a stale one, the assistant who kept
the books is not even proved to be ill or absent
irom the Colony, and the debt appearing in the
booka is entirely denied by the defendant. Af t«r
the evidence for the plaintiff had been given,
the Magistrate would have been quite justified
ra granting absolution from the instance. This
was cot done, and if the defendant, on cross-
examination, could have been made to admit
the debtt the Court would rightly have given
judgment for the plaintiff. But the defendant,
while admitting that he had bought most of
the articles feued for, stated that he paid for
them at the time they were purchased. That
wonld sofhciently account for his not producing
reoeipts for his payments. But even if the
aaltA had been on credit, it is unreasonable to
expect a customer to keep leceipts for pay-
menta made by him six or seven years after
payment. A tradesman has himself only to
blame if he delays in enforcing his claims until
he can himself no longer produce the best
lee in support of them, or until his
may fairly be expected to have lost
destroyed the vouchers which could have
disproved the claims. Upon the evidence in
the Court below judgment ought not to have
been given for the plaintiff, and the appeal
mmt therefore be allowed, with costs, and judg-
meoi of abeolution from the instance entered,
with coets, in the Court below.
BmOiBnan, J., and Maasdorp, J. concurred.
Appeal allowed accordingly with costs.
[Appellant's Attorneys, Messrs. Walker k
Jacobsohn; Respondent's Attorneys, Messrs.
Tredgold, Mclntyre Sc Bisset.]
SUPREME COURT.
[Before the Right Hon. Sir J. H. dk Villieks,
P.C, K.C,M.a. (Chief JiiHtice). Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp. J
FORBEST AND CO. V. STAGLER.
f 18D7.
I Feb. 15th.
This was an action for breach of contract.
The plaintiff's declaration nlloged that plaintiti:
is a miller residing at Uondeboscli, and carrying
on business under the style of John ForrcBt &
Co. The defendant is ii tailor and produce
dealer at Venterstad, in the Cape ('olony. That
in August aud September, IS96, the plaintiff
supplied and delivered to defendant at liis
special instance and reijuest Hour, meal, aud
mealies to the value of £54 Ds. ad., and paid
railway carriage on them to an nnioiii»t of
Jiii7 88. 5d., as shown on the account annexed to
the declaration. That in October, lSL<r., the
plaintiff further supplied to the defendant Hour
and meal to the value of .CVJ 17f., and paid
railway carriage and charges to an amount of
£17 138. 6d., also uhown on an account aiiuexed.
That the terms and conditions of the naid sales
were that the defendant should pay cash and
railway charges. That the delendnnt did nor
pay cash in accordance with the terms of sale,
and after the gooils supplied in August and
September had been delivered the plaint ill'
stopped the actual delivery of the ^oo(h supplied
in October, wliich were in the bauds of the rail-
way authorities at Norval's Tont, whither his
goods had been sent in due couixe, and that the
goodi* were lyiug at the said railway station at
defendant's risk and expense. That the defen-
dant refused and neglected (and still does ho) to
pay the purchase price and railway clinrges.
The prayer of the declaration was that
defendant be ordered .(1) To pay plaint ill' the
sum of £71 78. 7d. ; (2) to pay the sum of
£77 10b. 6d., he t<jndering to hand over the
goods at Norval's Pont;(:])to pay interest
a tempore monc] (4) with alternative relief and
costs of suit.
Mr. Tredgold appeared for the plaintitf, de-
fendant being in default,
60
John Forrest stated that he carried on busi-
ness at Rondebosch under the style of J.
Forrest & Co. The defendant had communi-
oatad with him by letter, and in September last
witness supplied him with goods amounting to
£64 9b. 2d., the railway charges bemg £17 18s. 5d.
A further consignment was forwarded in
October amounting to £69 17s., the railway
charges in this case being £17 19b. 6d. Witness,
not having received payment for the first con-
signment, stopped the second at NorvaFs Pont,
and gave instructions for the sale of the goods
there, the defendant being at the same time
notified that the goods were lying there at his
risk. He recei'^ed £68 los. from the sale of the
goods, but he was put to further expense in
r^^ardto correspondence and telegrams. The
tot il amount claimed was £84 8s. 7d.
The Court gave judgment for £84 8s. 7d. with
costs.
SUPREME COURT.
[Before the Eight Hon. Sir J. H. db Villiebs,
P.C, K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdobp.]
COLONIAL GOVBRNMENT V. GEBTEN- l 1897.
BACH*8 EXECUTOB. \ Feb. 16th.
Expropriation — Laud — Transfer.
Held, f « an action instituted hy the
Oovernment to compel transfer of
certain land in Port Elizabeth,
which had been expropriated for
railway purposes under Act 19 of
1874, that the executor of the estate
of the person whose land had been
expropriated was bound to pass
ti'ansfer.
This was an action to compel transfer of cer-
tain property at Port Blieabeth, expropriated by
the Railway Department in 1877.
The declaration alleged that in the year 1877
the Colonial Government, under the powers
conferred upon it by Act 19of 1874, expropriated
for railway purposes a certain piece of land
situate at Port Elizabeth, being lots Nos. 8 and
4, sub-division of lot No. 60 of section F of the
Jennings estate, measuring fifteen square roods
andfoity square feet, registered in the name o£
C. J. Qertenbach.
That the Colonial Oovernment being unable to
agree with Qertenbach as to the amount of corn-
pen ation to be paid for the land ao expro-
priated, it was agreed between the GoTernment
and Qertenbach to submit the matter in dispute
to arbitration in terms of Act 9 of 1868 and Act
19 of 1874, and for that purpose the Colonial
Government and Qertenbach signed a deed of
submission, under which two arbitratora were
appointed, one on behalf of the Qovernm«*nt,
and the other on behalf of Qertenbach.
That there was a difference of opinion be-
tween the arbitrators as to the amount of com •
pensation which should be awarded to Qerten-
bach in respect of the said land, and in terms of
the deed of submission they called in as umpire
one Joseph Simpson, who thereafter duly
published his a*vard, under which he awarded
Qertenbach £26 (which amount had been ten-
dered to Qertenbach by the Government before
the execution of the deed of submission and
refused by him) as the full value of the land
expropriated, and ordered Qertenbach to |my
the costs of the arbitration.
lliat the costs exceeded the sum of £26, and
on Qertenbach*s refusal to pay the costs they
were paid for and on his account by the Colonial
Government.
That on the publication of the award the
Colonial Government entered into possession of
the land expropriated, and have since that time
remained in possession.
That, though frequently requested during ills
lifetime, Qertenbach wrongfully and unlawfully
refused to pabs transfer to the Government of
the land so expropriated, and since his death
the defendant, though frequently requestetl,
refused to pass transfer.
The prayer was that the defendant, in his
capacity, should be ordered to pass transfer in
dae and customary form of law, the plaintiff
tendering to do all necessary acts to obtain
transfer, alternative relief, and costs.
The defendant in his plea admitted the ex-
propriation and the execution of the deed of
submission. As to the other allegations in the
declaraticn, he alleged that he had no
knowledgi>, save that he admitted that the
Government has been for many years in poaaea-
sion of the land, and that he refused to reoogniae
any obligation to pass transfer. He put the
plaintiff to proof of the remaining allegationa
in the declaration.
He specially pleaded that the plaintiff was
not entitltd, in terms of Acts 9, 1868, and 19,
1874, or either of them, or at all, to claim from
61
W liwttier oi lY^e l&na ; but that if the
#«^t w^re at «.\\, cktler tlie lapse of so many
T«K,(fitiUed U> trflkVkfifer Cwbich he did not
^\\>\ be shoulfl prove liis title thereto in
IKm^uoewitli tHe Derelict JLfBnds Act, 1881,
tottKBattt{«ct\oi& ol flkSiidge, and afterwards of
theCwrt,«xic\k proceeciii&ss being taken at his
oncost.
He loiiheT &f>ec\aUy pleaded, if the above plea
were deemed \iiBuflicleiit« but not otherwise, that
tiie plaintiff wfliR not entitled to claim transfer
of the land without tenderioK to pay all costs
incorred \n connection with f?i t i ng such tra ns-
fer, and \ie said that no auch tender had been
made by t\ie plaintiff in thia suit.
The replication waa general, save that it
allied tbat the plaint ifi was, and always had
been, ready and willing to pay whatever costs
mi^t be incarred by the defendant in passing
tranaler of the land in due and customary form
of law, aa the defendant was well aware.
laaue was joined on these pleadings.
Mr. Shell, Acting Attorney-General, with him
Mr. Biaaet, appeared for the Qoyemment.
Tine defendant was in default.
The following evidence was led for plaintiff :
D* Urban Dyaaon, senior partner in the firm of
Meaara. Dyaaun, Haaell & Wilson, attorneys
for the GoTemment at Port Elizabeth, raid that
in the year 1877 the firm, which was then styled
Dyaaon Sl Carlisle, were acting for the Qovern-
ment. Witness received instructions for the ex-
propriation of certain part of the Jennings
kte, and carried out the preliminaries of
expropriation, and also drafted the deed of
■nboiiasion. The award of the umpire was sent
to the Railway Department and subsequently
Koi mislaid. A letter was sent to Gertenbach,
with a copy of the award, on May 14, 1877. A
eertsun Thomas O'Brien was Gerten-
liach*8 agent and attended the arbi-
tration on behaK of Gertenbach.
Witaesa made frequent application for transfer
for about two years, but O'Brien continually
pat him off, and finally told him that Gerten-
Imefa had withdrawn his power. Witness at-
tended the arbitration on behalf of the Govern -
and the amount of compensation awarded
£25^ Gertenbach being ordered to pay
the coeta which amounted to over £25.
At the time the property was expropriated,
property had not risen in value at Port
Blizabeth, but the same land, if expropriated
now. would fetch about £1,000. The Govern-
ment took poflBeasion of the land, and a line of
laHway now ran through it. The executor lived
at Uiteohage, and had only recently been ap-
poioted.
As the original deed of submission could not
be found a copy was put in from which it
appeared that the parties agreed to go to arbitra-
tion on the basis of an out-and-out sale and
purchase.
Mr. Shell, Acting Attorney-General, for the
Government: The first defence raised in this
case is that there is no obligation on the defen-
dant to paps transfer either under Act 9 of 1868
or Act 19 of 1874.
It is true that there is no express provision on
the subject in either of these Ac»«, but expro-
priation is a forced sale, and the mere fact that
it is a forced sale does not deprive the buyer of
his ordinary common law right to demand
transfer of the property bought under the
statute.
A very clear indication that expropriation is
a sale is afforded by the language uied in
sections 12 and 13 of Act 9 of 1858. In both these
sections tne words " purchase " and " purchase
price " are used, and these terms show that the
transaction must be regarded as a sale, subject
to all the incidents of a sale, and that the
statutory buyer is not deprived of his ordinary
right to claim transfer. See Laivdniarh v. Van
der Walt (S Juta, 306).
In England it has been held over and over
again, under the Lands Clauses Act (1845), that
notice by a railway company to take lands under
their compulsory powers and the subsequent
fixing of compensation by arbitration together
constitute a contract of sale and purchase which
can be enforced against either party by an
action for specific performance. Bee Dnrham v.
Crackles (32 L.J., N.8., 111); Harding v. AMro-
jfoUian Railway Co. (41 L.J., N.8., 371); /» fe
PigoU and the Great Wetdem Raihray Co,{\%
Ch. Div., 146).
The Chief Justice: Does the question not
depend upon the intention of the parties in
goluK to arbitration ? In other words, did the
parties arbitiate upon the basis of an out-and-
out purchase and sale, or was a servitude only
bought ? The point was discussed ia Claytofi v.
Metropolitan cftd Suburban Ra Ifvay Co, (8
Shell, 405; 10 Juta, 291).
In this case the parties arbitrated upon the
basis of an out and out purchase and sale. See
the terms of the deed of submission.
That being so, ( layt&n'g Case is clearly in our
favour. A lurther indication is afforded by the
fact that the umpire only awarded Gertenbach
the amount which the Government had tendered,
viz., £25, and gave costs against hini.
The Court gave judgment in terms of the
prayer of declaration, the Government to pay
I
62
the 006tB of transfer; in case the defendant
Bill refused to pass transfer after the order of
the Court, the Slicrill: whs authorised to pass
transfer.
[Plaintitf's Attorneys, Messrs. Reid &
Nephew.]
SUPREME COURT-
Before the Riglit Hon. Sir J. IT. dk Vjllikrs,
P.C., K.C.M.G. (Cliief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
MAASnOKP.]
PROVISIONAL KOLL.
MAri'HKWS V. DK SWAKT. j y } "Vj^..
Mr. Tredgold applied for provisional sentence
on a promissory uott; for £22, and also for judg-
ment for iilfi 178. (Jd., under Rule 329.
Granted.
KRYNAUWS EXECUTOIW V. SKDAN.
Mr. Ma»kew applied for provisional sentence
on a mortgage bond for CUV\ and also for £6
9s. 4d. on a taxed bill of co^ts arising: out of
previous proceed iugs. and that the property be
declared executable.
G ranted.
THE MASTBK V. COOKK'S KXECUTOR.
Mr. Sheil applied for pre visional i^entenco for
the sum of C500.
Granted.
ILLIQUID ROLL.
BAKER AND CO. V. DK VILLIEBS.
Mr. Buchanan applied for judgment under
rule 329 for £14 13k. 2d., due for gooils sold and
delivered to the defendant's wife.
Granted.
GENERAL MOTIONS.
IN THE MAITKR OF THE PETITION OP BAREND |
MEYER. I
I
Mr. Graham applied for an order making
i^bsolute a rule nhi for re^istratioa under the
Titles Registration and Derelict Lands Act of
certain property in the name of the petitiomer
Granted.
IN THE MATTER OF BBEDLE AND CO., LIMITKD.
Mr. Buchanan appeared to present, and
applied for confirmation of the second and final
repoi*t of tho liquidators.
Th» Court granted the usual order.
IN THE INSOLVENT ESTATE OF WILLBM
ADOLPH HAUPT.
Mr. Graham applied for authority to the
Master to call a special meeting of the creditors
for the election of a trustee in the room of one
deceased.
Granted.
IN THE ESTATE OK ACHMAT MAHED.
Mr. Buchanan applied for authority to raise
a sum of £.C/.0 on security of the landed pro-
perty in the estate, and that this sum, together
with £300 to the credit of the estate in the
Guardians' Fund, may be expended on certain
works in connect'on with the estate required by
the Town Council, and also that Mr. Tonkin
may be appointed by the Court to administer
this money.
Granted. The payment of the money to be
subject to the production to the Master of
tenders for the execution of the work.
FOURIB V. MAPrlSTRATK OF WOR- ( 1897.
CE8TER AND TH ACKER. \ Feb. 18th.
Private pro.«?ecu!iori — Public Prosecu-
tor — Certificate — Declining to pro-
secute — Appearance by counsel or
agent — (.'ommittal tor trial —
Preparatory examination — Sum-
mary trial.
A jRe.si'flent Magistrate cannot con-
vert a anniwainf prosecvtion at the
instance of a private party into a
preparatory examination to be cou-
dvctetl //// and at the expense of such
private prosecutor, itnless there he
produced to the Mogixtrate a cer-
tificate, under the hand of the Public
ProsecfUor to the effect that he
declines to prosecute for the offence.
The right to conduct a private pro-
secution implies the right to appear
in Court by counsel or agent.
6^
Tikis wutn applioAtioix upon a notice of
BM&n etlUng on tlie reepoiKients to show
oHHivhy ui order in tlie nat;ure of a maDdamus
MA Mi be srantetl direciinc? the Acting
Bflddeai Magistrate to entertain and admit a
fffiDAlftpplicatioii in the Resident Magistrate's
GoQit, Worcester, made l>y the above applicant
tobeiUowed\es«kl assistance Qhy a dulj' enrolled
i«esto£ibe aaid Court) »n proeecuting the
n^ODdentTbacker for perjury in a trial com-
aeaeed la that Court at tlie instance of appli-
ctttoatheUh Febroary, 1897. At these pro-
cttdiogB applicant's request for lesral assistance
wasiefneed and the present order was asked for
OB tHe groimd that tbe refusal was bad in law.
The proceedings^ in tbe Resident Magistrate's
Court were i- itiaied by a sumuionH against
Thacker Icr periury, taken out by Fourie.
Ob tbe day of hearing;, bowever, the Jvcsident
Magistrate instead of trying the case mm-
marily commenced to take a preliminary ex-
amination. M.r. Home appeared for the ac-
c«cd«and M.r. Shaw, a daly-«nrolled agent,
appeared for the complainant; whereupon the
attorney of the accused objected to the agent
far tbe complainant aaeisting in the prosecution
or taking any part wbateYer therein, he having
w» locMi standi nor any Bubstantial or peculiar
iatereat in tbe ieene arising out of any injury
wbi4^ be individually had suffered ; contending
thai this was a private prosecution by
Fourie, who as the Bummonp set forth '' prose-
eatea in hie own name and on his own behalf,"
and tbat he alone could appear.
Tbe exception was upheld, and a postpone-
n«Bt of the trial was granted to allow the com-
plainant to apply for such an order as that now
for.
the affidavits, it appeared that in
1896, Fourie was prosecuted for a breach
of ooe of the railway regulations, and was con-
The prosecution was instituted and
by Mr. Thacker. Hhief Constable of
; that in October, lSi)% Mr. Fourie
Mr. Thacker and another civilly in the
Cixvait Court to recover damages for wrongful
arrest ; that Thacker gave evidence ; that sub-
■e>ioently in consequence of certain information
applicatir n wa? made by Fourie to the Attorney-
General to have proceedings instituted for
perjuo' against Thacker. A reply was received
from the Secretary to the Law Department
statins, with reference to the request for
wamuBfs to he issued against Thacker and
otlierB : " I am directed to inform you that the
Attomey-Oeneral is not prepared to interfere in
tbe luMtter." Subsequently an application was
oiade hy Mr, Fourie 'b agent for the power of the
JMoFBef-Qenenl to prosecute. The reply wag
that, as the Attorney-General was informed
that the prosecution was a private one, and that
a summons had alrea-iy been issued not at the
instance of the Crown, the Attorney-General
declined to grant the power asked for.
When tbe Magistrate iuti muted, on the case
being called on, that he intended to take a pre-
liminary examination, no objection was raised :
and tbe Retidcnt Magi trute held that, in termn
of Ordinance 40 of IS2S, the witnesses sh. uld be
examined by the Majiistratc alone ; and that
there is no provision in tlic law of the Colony
for legal advisers to act forthccoiupltiinantina
preliminary examiuatiou. The summons and
subpwnas all set forth that the prosecution was
a private one. After the inelimiuary examina-
tion was begun the coinplainaDt a])plied for
the issue of a subpcuua for a further wituctfs,
but the Clerk of the Court relumed to issue it
unless the ordinary fee were paid on the ground
that it was a private pro^ecution.
Mr. Tnnes, Q.C., for the applicant.
Mr. Shell (Acting Attorney-General) for the
Acting Resident MuKl-trate.
Mr. Graham for the resnondent Thaeker,
Mr. Innes: This application is properly brought
before this Court for an order in tlie nature of a
mandamus. The (luestion is as to whether the
applicant should not have been allowed the
services of an agent at the proceediugp.
Mr. Justice Buchauau : Sliould not the pro-
ceedings have been betruu properly by the tiling
of aftidavits ?
Mr. InncK: Lc Sfft-tn' v. ^Vvn*// (Bucli. 77, p.
115) shows that our |)roce(lure was quite regular.
Brv/rn v. Ifmhoii (liuch. «{», page 170) guided
the procedure which the applicant has adopted
in this case, althou^'h that wa- a civil case and
this is a criminal one. In each ca?e the liesident
Magistrate refused to allow plaint itf to appear
by an agent. Ordinance 40 of 1828 places all
public prosecutions in the hands of the Attorney-
General. But under sections 13 and 14 private
prosecution.-* under certain circumstances may
take place. The applicant certainly had not the
certificate provided for in section 14, but Ordi-
nance 73, f-ection 6, diKpenses with the certilicate
in certain cases.
The Chief Justice : Once the private prosecu-
tion is turned into a preliminary examination
is not the prosecutor then bound to get the cer-
tificate of the Attorney-Ciencral ?
Mr. Innes : The Resident Magistrate has not
decided that this is a case for a public pro-
secution, i.e,f one where the Resident Magistrate
//rw«t refuse to allow the private prosecution to go
on unless the certificate of the Attorney-General
18 produced. The Resident Magistrate haa
not taken the course laid down in section 7 of
64
Ordinance 73. Even after taking the course he
did, in turning the proceedings into a prelimi-
nary examination, he still continued to treat the
matter as a private prosecution.
The Chief Justice : His duty was to stop the
proceedings, seeing what a serious matter it
was, in terms of Ordinance 73, section 7.
Mr. Innes : But the Resident Magistrate has
a certain discretion in the matter. He might
have stopped the private prosecution, but he
has not actually done so.
Mr. Justice Maasdor]) : Ordinance 73 of 1830
only allows the issue of summons without the
oortificate in cases where the prosecution is a
summary private one; the moment it becomes a
preliminary examination, section 6 does not
apply.
The Chief Justice : Can a private preliminary
examination be held till the Attorney-Qeneral
refuses to certify ?
Mr. lanes: See aection 14, Ordinance -iO of
1828, and Le Snettr v. Geary (Buch p. 77,
115). It was never argued in the latt«r case
that there could be do such thing as a private
preliminary examination. As Mr. Cole there
said, it is only after the preliminary examina-
tion is sent to the Attorney -General that the
Attorney- Geniral gives his certificate, and then
the Attorney-General by section 14, Ordinance
40, has to endorse on the hidictm^nt his refusal.
But that means that it is not until the indict-
ment is naturally drawn that the certificate is
re<iuired or is in question. The objection taken
by Tbaokcr and the Resident Magistrate was
simply that it was a ])rivate preliminary
examination.
The Chief Justice: Yes, but it comes now
before this Coirt, and the Court must eee that
proceedings are proper.
Mr. Innes : Section 5 ot Act 15 of 1864 shows
that before a private prosecutor can bring a
person for trial before the Supreme Court, the
prisoner must have been committed for trial,
and the Supreme Court on the application of
any party interested may order the Resident
Magistrate to take a preparatory examination.
Why was the proviso "a»y person interested "
(other than Attorney-General) put in, in line 14
of section 5 ? Surely to allow private prosecutors
to come before the Court to get an order requir-
ing the Resident Magistrate to ocmmit a
prisoner for trial, the law contemplating that a
man could take all the preliminary examina-
tion steps privately.
The Chief Justice: Probably a private pre-
liminary examination can take place, but can
that be done till the certificate is produced ? Is
there any other section in our law than section
7 which allows private prosecutiox without
certificate ?
Mr. Innes : Apparently not. Moreover there Is
no express provision entitling a private prosecu-
tor at any stage of a prosecution to be repre-
sented by an agent. Ail other cases we admit
are provided for, e.y., the Attorney-General may
appear in public prosecutions by his deputy. The
parties in civil suit can appear by their \egBl
advisers, and so also persons charged with
criminal oifences can under section 45, Act
20 of 1856, be represented in court. But there is
no express provi^ion for legal advisers appear-
ing in jfrirafc prosecutions. The Itebident
Mairistrate appears to think that this cannot be
done except by express statutory p ovision.
But the Resident Magistrate is in error, the
converse is the correct rule, /..-., we contend that
every person is entitled to be represented by a
duly enrolled agent unless the law prohibit* it.
It is not correct to hold, as the Resident Magis-
trate does, that only those are entitled who are
authorised by law. Common law does not deal
with private prosecution. There are no private
prosecutions by common law, but there is no
provision that agents cannot appear in any case
whatever. Voet (48, 1, 2) supports our contention.
Wherever there are enrolled agents they surely
arc qualified to appear for anyone who is
legitimately Lefore the Court. On every ground
of law and convenience the Resident Magistrate
was wrong.
[The Court intimated that they only wished
to hear counsel on thin point: Supposini? the
Attorney* General does give the certificate is the
Resident Magistrate right in refusing to allow
the prosecutor to appear by his agent ?]
Mr. Shell, Acting Attorney-General, for the
Magistrate: Express provinion is made in
the law for allo-Ting any person charged with a
criminal ofi:ence to make his defence by counsel,
attorney, or agent. See Act 20 of 1856, section
45, and even now on a preliminary examination
he may have legal assistance; Act 17 of 1874,
section 13, repealing Ordinance 40, section 39.
A plaintiff or defendant in a civil case may
have legal assistance. See Act 20 of 1856,
Schedule B, Rule 13.
Except in certain specified cases no provision
is made in the law for allowing a private
prosecutor legal aFsistance. See Rules 68, 69, 73,
and 74 of Schedule B. But see Act 40 of 1889,
section 56, and Act 38 of 1884, section 7.
In private prosecutions there is no necessity
for professional assistance as the examination
is practictlly directed by the presiding Magis-
trate, who will be careful to see that there is
not a misoarriage of justice.
65
^. Qnham, tor t^tim respondent Thacker,
i^ciRdio8ecii<m8 15 sbnd '^O of 1828. In aoy
Wfi^liUie agent vrisliecl 'to appear he should
Wt8 put in Ilia power.
DeYilliere, C.J. s By tlie common law of this
coantiyallcnmlikal proi«ecu.tioii8 luustbecon-
<^«i by a p\Lblic pros eco tor. A private
iatfiTidoal, wbo under tlie B.oman law had the
ngiit to proeecute in liis own name, could in
floUtadonly lay Ykie complaint before the proper
pablic official wboee dnty it became, upon auffi-
cieai eaoae a\io^m, to conduct the prosecution
rnbehaU oi tbe &tate : aee Voet (48, 2, 18). In
ISS^however, it was enacted in this colony, by
Ordinance ^o. 40, aection 13, that where the
pabUeproeecutor declines to prosecate, it shall be
«xnpeieatloT any private party, who alleges
that he haa aoffered in3nTy by any crime or
oSeaae, to ptoeecate the offender in any com-
petent Court. The 14:th section farther pro-
^idea tkiat it ahall not be competent for snoh
pnvatft party to obtain the process of any
Court for smnmoning the alleged offender
withontthe prodnction, in the higher Courts.
o€ a certificate onder the hand of and sub-
scribed by the Attorney-General to the effect
that he declines to proeeoute, and, in the lower
Ccarta, of a similar certificate from such
other officer as is by law entitled to prosecute
therein at the pnblic instance. The latter part
of this section was modified, in 1830, by the 6th
■eetion of Ordinance No. 73, which dispenses
vilh the necessity of a certificate in cases of
aantmary prosecution by private persons in
in£etior Conrta. The 7th section, however,
enacts that where, in the coorao of such a
i mwiar y prosecntion, it shall appear that the
crime or offence is, from its nature or magni-
tode, one which ou?ht not to be prosecuted at
the instance of a private party, until the
public proeecntor shall have exercised his
discretion, the Magistrate shall stop all further
praeeedhigs nntil the party prosecuting shall
predaee snch a certificate as has already been
naentloned. The proviso to this section shows
that it was not intended by this section to alter
the lair which requires a Magistrate, in the case
of any crime which from its nature or magni-
tade 18 more proper for the cognizance of a
■■perior Court, to stop the trial and commence
a pieparatory examination. The first question
wh jeb mm arises is whether, after a Magistrate
bme decided, in the case of a summary pro-
•centjoa for perjury, at the instance of a
prirmtepmrty, that the crime is one which from
/to oatore or msgnitude is more proper for the
eoKttimeoee of a aaperior Court, he can com-
meotie a prepnrAtory examination to be
eaBdueted by «nd ^^ **** expense of such
private party. The Ordinance No. 73, it should
be observed, does not expressly enlarge the
right of private individuals to prosecute in
superior Courts. It allows them to prosecute
summarily in inferior Courts but requires the
Magistrate to stop the proceedings in the event
to which I have already referred. If a crime is
of such a nature or magnitude that a prepara-
toiy examination must be taken, it would seem
to follow that it is of such a nature or
magnitude that it ought not to be pi*osecuted at
the instance of a private party without a certi-
ficate from the proper official. The preparatory
examination forms part of the proceedings of
a prosecution, and therefore if a private party is
allowed to conduct the preparatory examination
he is allowed to conduct part of the prosecu-
tion. Without a certificate from the public
prosecutor such as I have mentioned a private
party ought not. in my opinion, to be allowed
to conduct such a preparatory examination.
The next question is, by whom should such a
certificate be given? In ray opinion, seeing
that the preparatory examination can only be
taken with a view to a prosecution in the
higher Courtf, the certificate should be given
by the superior public proseoutor, such as the
Attorney-General or Solicitor-General, as
the case may be. Without such a certificate the
Magistrate should not allow a private prosecutor
to conduct the preparatory examination as part
of a private prosecution. In the present case a
letter addressed to the private prosecutor by a
clerk in the Attorney-General's Office is forth-
coming, but that is not sucb a certificate as the
law requires. The object of the present
application is to compel the Magistrate to
allow the private prosecut-or, Fourie, to be
represented by his agent in the conduct of the
preparatory examination. In the absence, how-
ever, of a proper certificate from the Attorney-
General I am of opinion that the examination
ought not to proceed. It follows that the order
asked for cannot be made. It is reasonably
clear from the affidavits that there will be no
difficulty in obtaining a proper certificate from
the Attorney -General, and it is well, therefore,
that the Magistrate should know what, in the
opinion of the Court, would be his duty in
regard to the admission of a law agent to
conduct the examination of the witnesses pro-
duced at the preparatory examination, in case
he should still be of opinion that such
examination must be conducted at the instance
and expense of the private prosecutor. In my
opinion the privilege to conduct a private prose-
cution implies the right to appear in court by
counsel or agent. It would in many cases be a
uselets privilege if the law were otherwise. An
66
ignorant penon is charged with an offence and
convicted. He Bubsequently disooven eyidence
which proves to big satlBfaotion that the
conviction was obtained on perjured evidence.
He may not in the first instance be abletoinduce
the public prosecutor to take the same view of
the case, but in order to lay his case properly
before the Magistrate with a view to a
committal of the alleged offenders for trial, he
wishes to be assisted in court by his legal
adviser. I do not say that the present is sich
a case, but cases of that nature may arise. In
the absence of any express prohibition by law, I
am of opinion that the right to appear
by agent must be held to exist. It is
necessary for the proper conduct of the
proceedings that the Magistrate should have
the evidence brought before him in such a form
as to enable him to decide, in terms of the S5th
section of Ordinance No 40, whether or not there
are sufficient grounds for putting the accused on
trial. If the examinations are transmitted to
the Attorney-General under the 43rd section, it
is important that he should be in a position to
decide whether, notwithstanding his previous
certificate, the case is not one for a public prose-
cution. The obstacles in the way of a private
prosecution are so groat that it is impossible to
expect a private and unlettered individual
iucoessfttlly to encounter them without legal
assistance. While, therefore, refusing to grant
the mandamus nrayed for, the Court wishes an
intimation of its opinion to be made to the
Magistrate.*
Mr. Justice Buchanan : The Magistrate did
not, as he ought to have done, stop the summary
proceedings, and say that the prosecutor had no
right to go further until the certificate of the
Attorney-General was produced, and he was
wrong in considering the case as a preliminaiy
examination under the circumstances. I
quite agree that the prosecutor had every right
to be represented by a legal adviser. It is .a
common rieht which, unless expressly taken
away, a person should not be deprived of.
Mr. Justice Maasdorp concurred.
I, Attorney for Fourie, D. Tennant, jun. ;
Attorney for Ihacker, C. 0. Silberbauer.j
* Subaequently tlie Magistrate committed Thacker for
trial on a cliarge of perjur>', and, as the Acting Attornc}--
General declined to prosecute, Fourie applied to the
0*urt imder Act 15 of 1864, section 5, for leave to pro-
ceed with the prosecution. On this application the Chief
Justice made the following orders
^ I have consulted Mr. Justice Buchanan, before whom
the ]iei:Jury is allied to have been committed, and after
reading the evidence taken at the prellminar}- examina-
tion r liave come to the conclusion tliat the inter(»t« of
jnstice would not be served by granting the leave asked
for.— loth April, 1897.-^.D.8.
IK THX MAim OF THS MIN01I8 DB LAKOB
AHD OTHBB8.
Mr. lunea, Q.(J., appeared in the matter of the
confirmation by the Court of the sale by MarlA
Johanna de Lange (formerly married to Johan-
nes Hendrik Classen) to Joseph Benjamin
Watson of the share in the landed property
transferred to her as the executrix in the estftta
of the late Johannes Hendrik Classen.
The case was ordered to stand over until
March 12 in order to admitof notice being given
to Mrs. Lauge and to Classen, counsel drawing
attention to the fact that in terms of a previoiua
order of Court notice had been given, but for
a different date.
IN THS MATTBB OF THB CO-OPSBATtVK
BAJUKa OOMFANY.
Mr. Graham applied for an order directing ih«
winding up of ^e company under the Com-
panies Act of 1892, and for the appointment of
J. 8. le 8ueur as official liquidator.
The order was granted.
IN THB MATTBB OF CABL BBMBDICTUB
ZIBBVOOBL.
Mr. Molteno applied for the removal of Blsie
Maria Ziervogel from her position an one of the
executors in the estate.
The Court granted the order, and authorised
the remaining trustee to act alone.
SUPREME COURT-
I Before the Right Hon. 8ir J. H. DE Yillikbs,
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
VAN DEN HEBYER V. DU TOIT. J Peb^^rd
This was an application by the defendant for
the discharge of the notice of trial and for the
appointment of a commission to examine Pietnia
Daniel du Toit, one of his witnessee, at
Hanover.
Mr. Searle, Q.C., appeared for the applicant.
Mr. Innes, Q.C., for the respondent.
The Chief Justice said : The Court will make
no alteration in the date of the trial, which will
remain fixed for Friday next and plaintiff's wit-
67
neflBcs will be hemrd. If defendaot's witnMses
•re not here tbe Court will postpone the case
until Friday week, so the witneBses may be sab-
pfenaed for that date. As for the evidence of
oldMr. Du Toit, the Court will allow his evi-
denoe. to betaken on oommiseion, and appoint
the Resident Magistrate of Hanover as oommis-
aioner. Costs will abide the result of the action.
[Applicant's Attorney, G OS. TroUip; Respon-
dent's Attorneys, Messrs. Van Zyl ic Buissinnd.]
CB¥TWAQBN Y. OIBD.
Application by defendant for the postpone-
ment of trial, owing to the illness of a neces-
aary witness.
Mr. Searle, Q.C., appeared for the applicant.
Mr. Innes, Q.C., appeared for the respondents
The Chief Justice said : Had this case been
let down earlier in the term the Court would
certainly have refused the present application.
But the practice has sprung up lately of putting
off ever) thing during the first few weeks of
term; and just at the end of term squeezing all
the eases into the last few days. The Court in
this case wiU mark its disapproval of that
eomse. It was quite practicable for the plaintiff
to have eet down this case earlier in the term ;
\m% he sets down the case on the day before
the last day of term, when he must have
known that there would be a rush of cases. This
ease, therefore, must be postponed until next
term. Mr. Yixseboxse appears to be a material
witness. No doubt there are other architects,
but the defendant relies on Mr. Yixseboxse, and
he eertainly is, under the circumstances of this
caie,in a better position than any other to
judge of the manner in which the work was
done. He is too ill to attend, and probably
will be too ill to attend next week. It is,
however, only justice that the defendant
most make some offer. She has offered
to pay £200 without prejudice, and
the Court will now make an order that the cass
be postponed until next term on condition that
before Friday next, on which day the case is set
down, the defendant pay to plaintiff the sum of
£200 without prejudice to his defence to the
aetion. Costs to be costs in the cause.
[Applicant's Attorney, J. C. de Korte; Re-
Bpondent's Attorneys, Messrs. Walker &,
Jtoobsohn.]
Of THB SBTATK OF THB LATB WILLIAM AND
CABOLim DOBOTHSA CHIBVILL USD OIHKBS
v. CABLTON AND OTHBBB.
for the opinion of the Supreme Court upon
eertain legal questions referred to it by the
Chancery Division of the High Court of
Justice in Sngland.
Mr. Innes, Q.C., appeared for the petitioners.
Mr. Searle, Q.C., appeared for the defendants.
The Court decided to hear counsel in the case
on Thursday, 26th February.
TBBGIDGA AND CO. V. SIVB- /ifeb 2Srd.
WBIOHT.N.O, I March 1st.
Carriers — Railway Departmeut — Prae-
tor's edict — ^Negligence — Cattle-
Damage.
The Railway Department are liable
for the non-delivery of cattle en-
tnuted to them for conveyance by
railway.
The responsibility of the depart-
ment, as carriers by land, is the
same as that of carriers by water.
Where one of several head of cattle
belonging to the same owner is in-
jured through being trampled upon
by the rest while being conveyed by
railway J the department is not liable
for the loss in the absence of proof
that it v€u an improper mode of con-
veyance to place several oxen loose in
one truchy or that the injury was
otherwise facilitated through neg-
ligence on the part of the depart-
ment.
This was an action for £10 damages for non-
delivery of certain oxen, instituted by Messrs.
Tregidga & Co., carrying on business as butchers
at Mowbray and elsewhere in the Cape Division,
against the Colonial Government.
The declaration alleged that the Railway De-
partment of the Colonial Government, carrying
on business and acting as common carriers by
railway, did by its servants or agents receive from
certain consignors, acting as agents or representa-
tives of the plaintiffs, certain three consign-
ments of cattle, which the department as such
common carriers undertook to convey and duly
to deliver in good order to the plaintiffs at
Mowbray, to wit : (a) On or about the 19th June,
1896, certain sixty-four cattle ; (Jf) on or about
the 6th July, 1896, certain sixty cattle ; (c) on
or about the 2nd October. 1896, certain thirty
cattle, for which services as such carriers the
plaintiffs became indebited to and paid to the
department the several sums due by way of car-
riage (all which would more fully appear by
reference to the waybills of the several consign-
i^ents).
68
That not regarding and neglecting its duty in
the premises the said department by its Fervanta
and agents failed to deliver to the plaintiffs one
ox out of each of the said three consignments of
the value in all of £36, and further delivered to
the plain tiffs another ox out of the said third
consignment not in good order, but in a dam-
aged condition and depreciated in value to the
extent of £5, which said consignment was more-
over unduly and unreasonably delayed in
transit
The plaintiffs claimed delivery of the three
oxen or their value, £36, and £6 damages,
alleged to have been sustained by depreciation
in value of the fourth ox, or in the alternative,
£36 damages for non-delivery, and £6 for de-
preciation in value, with costs.
The Government in their plea admitted the
receipt of the three consignments of cattle, but
said that the first only consisted of sixty-three,
and not sixty -four oxen as alleged in the declar-
ation.
The Government denied the allegations of
negligence, and specially pleaded that when the
trains conveying the cattle in consignments " B'*
and " C " arrived at Middelburg-road Station it
was found that two oxen, one forming part of
each consignment, were so seriously injured
by having been trampled upon by the other oxen
in the trucks that it was found necessary to
remove them from the trucks, as they were
unable to continue the journey, and the depart-
ment, acting in the best interests of the plain-
tiffs, sold the said two oxen for and on account
of the plaintiffs. That the said two oxen
realised the sum of £7 lOs., which amount was
tendered to the plaintiffs before proceedings
were instituted in this action, to wit, on or about
the 16th October. 1896, but the plaintiffs refused
to accept the said sum. That due care and
diligence were exercis d by the department in
carrying the said consignments, and they were
delivered in good order and condition to the
plaintiffs. The Government again tendered the
sum of £7 lOs., and subject to the tender
prayed that the plaintiffs' claim might be dis-
missed with costs.
The replication was general, save that it ad-
mitted the tender.
On these pleadings issue was joined.
Mr. Innea, Q.G. (with him Mr. Stoney), for
the plaintiffs.
Mr. Shell (Acting Attorney-General;, with
him Mr. Bisset, for the Government.
Benjamin Manning, stationmaatfr at Mow-
bray, said he had waybills of oatUe consigned
to the plaintiffs. On June 17, 1896, the waybill
specified that sixty-four cattle left Queen's
Town for the plaintiffs. Of that consignment
sixty-three reached Mowbray. There was an
account pent to Messrs. Trftgidg^ for the car-
riage of sixty-four bullocks, but there was a
footnote to the account in the Mowbray
Station clerk's handwriting that only sixty -
three had b«en received. He had ordered the
clerk to make that footnote. The carriage
charge was made per truck, not per bullock.
Gross-examined by Mr. Shell : The trucks on
their arrival were in good condition and suitable
for the purpose of carrying the cattle. Mr.
Loubser. an employed of the plaintiffs', gave him
a receipt for sixty-four head of cattle. It was
uncertain how many came at the time. The
porter counted eighteen cattle in the first three
trucks, and he counted forty -five in the other
trucks. He could not swear that there were
sixty-three received, but he trusted his porter.
Mr. Innes: Their case is that they only
received sixty -three at Queen's Town.
Mr. Shell : We say we delivered the number
we received.
Alfred James Fleischer, buyer for the plain-
tiffs at Queen's Town, said that in June last he
consigned sixty-four head of oxen from Queen's
Town. He counted them himself twice just
before they were trucked. He would not swear
that he counted the cattle in the trucks.
Cross-examined : The cattle were put in the
trucks during the day. It was towards five
o'clock. The tracking was finished about duak.
The trucks were all right He had never known
the Railway Department lose an ox in that way
before. The loading was done by his (witneea's)
men. The stationmaster at Queen's Town made
out the waybill from his consignment note. The
contract was for the hiring of the trucks. He
took no receipt for the cattle from the station-
master.
By the Court : There was nothing analofi^ouB
to a bill of lading received from the Railway
Department Only since the beginning of the
present year had he obliged the Railway Depart-
ment to give him a receipt for any oatUe he
trucked. The cattle had travelled forty-two
miles before being trucked. They had not
travelled all that distance in one day.
Re-examined : None of the cattle had been
overdriven before trucking.
By the Ceurt : The value of the first consign-
ment of oxen was from £7 to £9 per head, of the
second and third £9 to £13 per head.
Nicholaas B. Loubser, employed by plaintifb,
remembered cattle being sent from Queen's
Town in June. There were eighteen cattle in
the first batch of three trucks.
Cross-examined : He was not there when the
second batch arrived. He signed for sixty-four
^
ciUle I week afterwitrda. He did not know
fW Dumber he waB signios for. He knew ibai
oiijiiity-three bad oon^e.
MitthjE tticbiel LioulMaer, employed by plain-
tils aid he receWed i^lke secoiid bat«hof the
int eoDBignment from Queen's Town. There
vereforty-fiTe cattle.
TlMmias l&oflBop, one of tlie plaintiffs, a
putocr In the firm of TrefrldKa & Co., said it
m tbe rale of the firm not to put more than
sx cattle in a track. He saw the first batch of the
int conaignmeiit from Queen 's Town, and there
*cn eigbteen cattle On the day after the
Re«d batch came. There were forty-fire of
theoi. Tbe valae of tlie lost ox delivered in
Gape Town would he nearly £10. In July they
reedTed another oonBlgnment of cattle from
Qiieea*BTowiu one heing shorty valued at about
£11 In October a consignment of thirty cattle
vaa aeat from Kei-road. The consignment ar-
rived one ox abort, and In addition one of the
lot which was delivered was in a very bad con-
diUoa, exhausted and trampled so that it had
dctetiorated to ^e extent of £6. In the last
tv^ve months sixteen cattle had been delivered
■hart, and nine delivered injured or lost. He
was bringing this as a teet case. He intended
to bring an action for the value of the others if
be wen tbe present caae. He was, however,
really more anxious ak>out the future than the
paeW He wanted tbe case settled to see if the
Goveniment was really liable.
Crossr-examined : They had always contended
that the Kailway Department should forward
aaj injured animal. The Bailway Department
had maintained that in the interest of sanitsr]'
law, if nothing else, oxen that had been killed
or damaged in the trucks should be taken out at
and sold. Since the present action had
instituted the Bailway Department had in
le cases delivered oxen that had died on the
ycMDiiey. A dead ox was worth £1 for the hide
and. J(h. or los. for the tallow. The Bailway
f^P^rtment bad sold some oxen at a less figure
tiian that, so low as 9s., 10s. «d, and 14s. The
Railway Department had paid compensation
for oxen trampled on in the tracks on very
many occasions, e^^ in a case where the shutters
«f tfae tracks had been dosed and the animals
lencteed faint by suffocation. He had the
railway tariff book, and knew that there was a
daose in it to the effect that the department
would not be liable for damages.
jr. fierselman said he had assisted to truck
the cattle of the fi«^ consignment at Queen's
Town. He was sure there were sixty-four of
them. Tbej were tracked just at sundown. He
eare the fuU number of sixty-four were
trucked, and that they were all in good condi-
tion, and not overdriven when placed in the
tnicks.
Joe, a Kafir, said that he had driven the cattle
of the first consignment from Tarkstad to
Queen's Town. They took two and a half days
on the journey. There were sixty-four oxen.
He counted them in Kafir language. He could
not count in Dutch. They were all trucked pro-
perly.
Gross-examined : It was not dark when they
finished trucking.
Herbert 8. Ball, stationmaster. Queen's Town
remembered cattle being loaded there by Mr.
Fleischer in June last. He did not count the
cattle. It was not the practice to do so unless a
receipt had been given for the cattle. A waybill
had been made out from Fleischer's consign-
ment note, and signed by his clerk. The trucks
in which the cattle were sent were in good order,it
would be im|x>S8ible for the cattle to get out. It
was quite dark when the cattle in question were
trucked.
Cross-examined: TLe train had bet n delayed
owing to the late loading of the cattle in ques-
tion. In making out the waybill they took the
word of the sender, except where a receipt for
the number of cattle was asked for. When a
receipt was asked for, the cattle were counted.
By the Court: Every case of cattle falling
dewn in the trucks wm not due to violent shock
received by shunting.
Arthur C. Harding, guard of the train in
which the first consignment of cattle from
Queen's Town was sent, said that as far as
Stormberg, to which station he took the train,
none of the cattle got out. There was no violent
shunting.
Cross-examined: Some of the trucks were
pretty old, but in good order. He had not
frequently seen cattle injured in the trains.
Be-cxamined : A truck could not have been
opened and an ox taken out whilst he was In
charge of a train. He had known instances of
cattle injuring each other in the truckjB.
Andrew James Gardner, guard, said that he
relieved the last witness and took the train in
question to Middelburg-road. The trucks were
not interfered with whilst he was in charge.
There was no violent shunting.
Cross-examined : He had never known cattle
injured in a train of which he had charge. He
had been a guard for about a year.
Thomas Clench, miard, said that he took the
train from De Aar to Beaufort West and lost no
cattle whilst he was in charge.
The Chief Justice : What's the value of the
chain of evidence with one link wanting?
Where is the guard from Mlddelburg to De Aar 1
70
Mr. Shell : The guards are oonBtantly chang-
ing. We hare made every endeavour to get
these guards, but have been unable to do so.
Samuel J. K. Brown, stationmaster, Middel-
burg-road, said he remembered oxen consigned
to the plalntiiEs being found lying trampled in
the trucks at his station on dates in July and
October. They would not have reached their
destination alive If he had sent them on. He
therefore had them removed and sold. One of
the oxen fetched £4, and the others £3 lOs.
By the Court : He had a general authority to
sell cattle found in such a condition, and
an entry was made as to the action that had
been taken.
Continuing, witness said he had sold dose ns of
cattle so injured. Combrincks had never com-
plained. He attributed the lying down and
being injured of cattle to the fact that they were
often put in tired after a long journey to the
station. Bight was the maximum allowance of
cattle to a truck, but five were as many as ought
to be placed in a truck. It was an impossibility
to get eight oxen in a truck. Cows they might
possibly get eight in a truck. He had seen
cattle dead in a truck within three hours of their
being trucked.
Charles Duffett, stationmaster, Grootfontein,
said that on October 6 a train arrived having a
truck with oxen for the plaintifEs. Two of the
oxen were lying down. He had the truck re-
moved from the train and the oxen off-loaded.
The two were completely exhausted, and could
not eat. He watered them, and sent them on
next day. The truck was numbered 4,478.
Benjamin Manning (recalled) said that on
October 7 a truck. No. 4,478, with oxen for
Tregidga & Co. arrived, one of the oxen being
down and trampled on. It was quite the practice
to sell injured oxen of the plaint ffs at stations
up the line.
Cross-examined: About four days was the
usual time for cattle to take to come from Kei-
road.
Mr. Innes for the plaintiff : The Government
is alleged in the declaration to be common
carriers, this is not denied m the plea. If this is
admitted the defendant's case falls to the
ground, common can'iers being insurere and
liable la every case except for loss by act of God
or the Queen's enemies. The point has never
been decided whether the Government when
carrying goods is a carrier, bound by English
law.
The Chief Justice : What does our law say on
the point 7
Mr. Innes ; The whole of the doctrine of the
carrier's liatility in Roman-Dutch law is based
OB the Edict of the Praetor {Digest 4, 9.) A
carrier whether by land or water, in Roman law
is in the same position, and so also in Roman-
Dutch law. Now according to Roman law —
those who took goods to carry for hire were
liable even without negligence, except in the
case of damnum fatale. Now there is nothing
like damnum fatale in this casie. But in
Roman- Dutch law the rule is laid down by
Voet (4, 9, 2), who extends a liUle the
doctrine laid down by Jdodestinvs in the
digest. Voet puts robbery from a stable or inn on
the footing of goods taken by force from a ship
by pirates. See also Van Leenwvn (R.D.
Law (4, 2, 10). and Censure Foremis, (Pt. I. 6, 90,
3). True otheiiwriters, e,g, Sehorer^ differ, but see
Peeking (De Nautica,page 818. folio E.D. Opera
ommia), while Xdy«^ (Med itationes VoL I. p.
710, specimen 66) says that in actions ^ De
receptU " no culpa or dolus need be proved — but
the plaintiff need only show that he brought the
thing to the carrier with the knowledge of the
person receiving and that it is immaterial hy
whom the damage is done. The nearest case In our
law is Naylor v. Mwnnik (3 Searle, 187) ; see alao
Jones V. Union 8 8, Co, (1 Juta, 126), and
gtretton v. Uni4>n 8,8, Co, (I E.D., 815), and
Shippard's judgment, p. 836) ; 8tory (on Bail.
ments, section i^^) Surge (Vol. 8, page 697). The
question is whether we must plead and prove
cfilpa.
The Chief Justice : The more important quea-
tion is the onus prohandi. Does it lie on yon to
prove negligence or on the Government to prove
diligence ?
Mr. Innes : That is assuming that negligenoa
must be averred. We do not admit this ; and see
Act 19 of 1861, section 20. The words used there
are applicable properly only to an insurer.
Even if the department are not insurers by com-
mon law they surely are by their regulationa.
See Regulations 130 and ISl of the Railway
Department Regulations whieh clearly con-
template the payment of insurance rates for
anything over £12, showing that the Govern-
ment clearly consider themselves insurers (for
amounts under that figure) under the common
law and statute ; the schedule merely limits the
common law liability to £12. Otherwise in
terms of the Statute and Regulati<His a man
shipping goods on railways under the depart-
ment is always insured for an amount £12 leas
than the actual value. We rely on the Roman -
Dutch authorities, but the Statute and Regula-
tions are useful as showing what view the
Railway Department takes of its position.
The Government is now relying on Regulation
128— but it should have been pleaded as setting
up the contract as contamed in the Regulations.
All considerations of equity and public polic
71
tre in faTOur of the Tiewg laid down by the
Bmnan-Dnteh authorities. Oar broad princi-
ple ii that eulpa is not necessarj to be proved,
but that the carrier is an insurer and is liable
for anj damage save damnium fatale. The
consignor is not bound to send a man with the
cattle to feed and water them, it maj not be
ptaeticable. The Government has not pleaded
contributorf negligence, and we have not come
to meet such a case. If the Court finds that
culpa IB an essential, the onus is on Government
to prove due diligence, as we have proved that
we delivered the!cattle to the department in good
order. But the chain in the Government evi-
deaee on this point has broken down, for the
Government failed to produce all the guards on
the various sections.
Mr. Sheil, Acting Attorney -General, for the
GoTemment : Assuming that carriers by land
sre in the same position as carriers by water
under the Pretorian Edict, it is dear by our law
that the same extent of liability does not attach
to them as the law of England imposes upon
common carriers. See StrtUon v. Ths Union
S^. Co. (I B.D.O., 316),per Barry, J.P., at p. 324.
mdper Shippard, J., at p. 335. In J(»iet v, Tlie
Umon S.S. Co. (1 Juta, 1&), the Chief Justice
regarded the defendants in that case as being
in the position of depositaries or, as the Snxlish
law calls them, bailees. See Story on Bailments
(anb-aection, 428, 467). This being so the
liability or non-liability of the Government in
the present case depends upon whether the
Bsilway Department has discharged the onus of
Bbowing that there was no negligence on its
part.
Mo evidence whatever of negligence has been
given. The trucks were proved to be in good
order and condition. No accident occurred to
the trains which carried the oxen, and under
BQch circumstances there is only one inference
that can be drawn and that is that the injured
smmalssostained damage in consequence of their
own ''proper vice," or by the vice of the other
uimaU in the trucks, in which cape the depart-
ment, even by English law, would not be held
lisble, as the loss was occasioned by mere
socident and inevitable casualty. See Blower
V. The Q. W. RaUway Co, (7 C.P.. 655) ; KendaU
V. L.^S. W. RaUftay Co. (7 Bxch. Cases, 373) ;
Carr v. L. 4' Y. Railway Co. (7 Exch.. 711, 21
UL Bxch., 262) ; PardUgtan v. 8. W. Railway
Co. (26 L.J., Exch.. 1(«); Gabay v. Lloyd
(3 B. &C., 793); Ltwrenee v. Ab rdien (5 B. k
K 107.) Although these cases are not binding
00 this Court still the principles underlying
Uiem are sound, and fully support the doctrine
Itiddownby 8tory.
It is purely a jury question whether the first
consignment consisted of 63 or 64 oxen. If the
Court is satisfied that 64 oxen were delivere.l at
Queen's Town, the Government would of course
have to submit to judgment for the value of
that ox.
The Chief Justice: The Court has no doubt
as to the liability in one case— the first; but as
to the other, we will take time to consider.
C.A. V.
Pogtea ( March 1st).
The Chief Justice said : This is an action
against the Railway Department to recover
damages for non-delivery of three oxen, which
had been consigned to the plaintiffs, and for in-
jury done to a fourth ox, which had also been
so consigned. The cattle had been sent by rail-
way from Queen's Town by the plaintiff's agent,
Fleischer. The first ox alleged not to have
been delivered to the plaintiff was sent in a
large troop, filling eight cattle-trucks. The
cattle were driven into the trucks by Fleischer
himself, who states that he counted them while
they were in a kraal adjoining the station, and
found them to be sixty-fonr in number, lie is
supported in this statement by two other wit-
nesses, and by the important fact that the re-
ceipt signed by the stationmaster's clerk at
Qneen's Town, and sent onto Mowbray, specifies
sixty-four as being the number of oxen con-
signed. Strangely enough, no such receipt was
demanded by or given to Fleischer at the time
of the delivery. The defendant now alleges that
only sixty-three were delivered to the Railway
Department, but the only evidence given in
support of this allegation is that
of the guards who accompanied the train
for a portion of the journey between Queen's
Town and Mowbray. Each of them states that
while he was in charge no oxen could have
escaped or been stolen from the train, but such
evidence is of no value if links in the chain of
proof are wanting. No evidence is forthcoming
as to the journey from Beaufort West to Mow*
bray. In the face, therefore, of the receipt
given by the stationmaster's clerk at Queen's
Town it is impotsible to hold that only sixty-
three exen were placed in the trucks. The de-
fendant was bound, in the absence of any legal
excuse, to deliver the full number of oxen con-
signed, and must pay the full value of the
missing ox, which according to the plaintiff's evi-
dence, amounts to 8 guineas. As to the two other
oxen which were not delivered to the plaintiffs,
the Railway Department account for their non-
delivery as follows : On their arrival at Middel-
burg-road Station in separate trucks and on
different days each of the two was found lying
down and badly injured from being trampled
i
7%
upon by the other oxen ia the truck.
There were six in each truck. In order
to prevent any further injury the station-
master remoTed the injured oxen, and acting
on instructions from the deimrtmeut, he had
them sold to the best advantage. They realised
the sum of £7 IOb., which the defendant has
tendered to the plaintiffs. If they had not been
remered from the trucks they would in all pro-
bability have been trampled to death. A ques-
tion has arisen in the course of the argument
whether the department had any right to sell
the oxen, but assuming that this right did not
strictly exist, the question would still remain
whether the department is liable for the injury
done to the oxen. lithe department Lb so liable
the damages payable to the plainti^ for the
loss of the two oxen would be about twenty
guineas, but if the department U not so liable
there is no proof of damages beyond the sum of
£7 lOs., which has been duly tendered to the
plaintifliB. The important question, therefore,
to be decided is whether, under the circum-
stances diacloesd in the evidence, the depart-
ment, as carriers for hire, are liable to make
good the loss occasioned by the injury done to
the two oxen. In England the well-established
role is that a common carrier is responsible for
all losses except those occasioned by the act of
God or of the King^s enemies, but even there
such responsibility does not extend to losses
oooaaioned by some internal defect or some
inherent tendency to damage in the goods
carried. Thus, " if horses or other animals are
transported by water, and io consequence of a
storm they break down the partitions between
them, and by kicking each other some of them
are killed, the carrier will," according to Story
(on Bailment8,Bection676)," beexcused.anditwill
be deemed a loss by perils of the sea." In this
colony the liability of common carriers is not
quite so wide as in England. It has never yet
been expressly decided whether the Praetor's
edict, relating to innkeepers, shipmasteni, and
stable-keepers, applies in this colony to carriers
by land as well an by water. In the Netherlands
the dearth of authority on this point may be
accounted for by the fact that moi>t of the
carrying trade has always been done by water,
but it is strange that in this colony, where there
is no internal transport by water, the question
has never been distinctly raised. The edict of
the Roman Pnetor extended in terms to carriers
by water only, but the reasons stated for the
rules which it lays down are equally applicable
to carriers by land. The edict declared
that if Hhipmasters, innkeepers, and stable-
keepers (lid not restore what they had received to
keep safe the Prsstor would give judgment
against them (^Digett, 4, 9, 1). The reasons given
by Ulpinn for this edict are that it is for the
most part necessary to place confidence in such
persons, and to commit the custody of things to
them, and that unless this rule were thus
established an opportunity would be afforded to
them to combine with thieves against those who
trusted them, whereas they now have an induce-
ment to abstain from such frauds. The con-
struction placed on this edict was that the
bailees named were liable in every case of loss
or damage occasioned by theft, injury, or
otherwise, although happening without any
default on their part, unless it happened by
superior force or by what was called " fatal
damage," as, for instance, by shipwreck or by
the act of pirates. Among instances of superior
force being used, Voet mentions the cases of an
inn or a stable being broken into by burglars,
and the property of the guest or the horse
of the bailor being stolen, but he adds that if the
theft was facilitated by the negligence or default
of the innkeeper or stable-keeper, be would be
liable, and that the burthen of disproving
negligence lies upon him ( Voet 4, 9, 2). Voet
does not mention the case of a carrier by land,
but in the l/trecktsehe ContHttaiien (Vol. I.,
C, 21) such carriers appear to be placed on the
same legal footing ae carriers by water. Among
French writers on the civil law, Domat
(Bk. I. t. 16, sub-sections 3 and 4) holds a
similar view, which has been adopted in the
Code Civile of France (Art. 1782, &c In
Naylor v. Afunnik (3 Searle, 187) which
was a case of a carrier by land remarks were
made by the then Chief Justice of this
Court, and were concuired in by his three col-
leagues, which tend to show that In their opinion
the principles of the edict were equally ap-
plicable to carriers by land. " It appears to
me," said Hodsres, C.J., " that a carrier who
undertakes to carry goods is bound to tmke
faithful care of those goods, and is answerable
for their loss even in the ca«e of theft. It ia for
the interest of the public that this rule should
be enforced, as otherwise a door would be opened
for the perpetration of gross frauds when goods
are handed over by their owners for the purpose
of traosit." Assuming then that carriers by
land are subject to the same responsibility as
carriers by water, it does not follow that the de-
fendant is liable in the present case. The ex-
ceptions to the rule, as laid down by the Pnetor,
show that a carrier is not an inpurer of the
safety of the goods intrusted to his care. But
Mr. Innes contends that even if bv common
law the department are not insurers of the safety
of cattle carried by rail, their own regulations
cast on them the liability of insurers. Under
78
tiie heading *' Insuranoe Bates " the ISlst regu-
lalion fixes the rate for cattle at ten ehillings
for every £10 or fraction of £10 of declared
▼alue above £12 for 161 miles and upwards, and
requires that " the insurance premium must be
prepaid unless a special agreement to the con-
trary has been made with the traffic managers."
This insurance premium is a special charge
over and above the ordinary freight. It can
only be charged on the declared value above
£18. The fact that no insurance rate can be
claimed where no value has been declared, or
where the declared value is under £12 for each
ox, does not prove that oxen are insured to the
extent of £12 by the payment of the ordinary
freight. The ordinary rates for the conveyance
of cattle and other live-stock are referred to in
the 132nd regulation as " freight," and not as
** insnrance rates,*' and it is, therefore, impossi-
ble to hold that the department, by acceptance
of freight, insured the plaintiff's cattle against
whatever casualty might befall them during
their journey. They are liable for any injury
done to the cattle by their negligence or the
negligence of their servants, and for loss by
tiieft or otherwise, but so long as they take all
reasonable care, they are not liable for damage
done to each other by the plaintiffs' own cattle. If,
for instance, the proper mode of conveying
cattle by train were to place each bullock in a
separate box and, without the consent of the
owner, the oxen were allowed to be together
unfastened in a truck, the department would be
guilty of negligence. But it was assumed in
the present case that the usual and proper
mode of carrying oxen is to enclose about five
or six in a truck and leave them standing loose.
It was proved that the plaintifEs' own agent
placed the cattle in the trucks, that the trucks
were in good order and of the kind usually
employed for cattle, and that the injury to the
two oxen was done by the plaintiffs' own cattle.
The department, having proved these facts,
are in my opinion absolved from their common
law liability, unless the plaintiffs prove actual
negligence on their part. Such negligence
would not, it is true, be the immediate cause of
the damage, but the department would be liable
far any harm which might reaeouably have been
expected to result from their negligence. Thus, if
it had been proved that by reason of carelessness
in shunting the trains the trucks had been
shaken with unnecessary severity and some of
the oxen knocked down, the department would
be liable for the injuiy done by the trampling
which might reasonably have been expected as
the result of such carelessness. But in the
absence of any proof of this nature, the Court
cannot assume that negligence on the part of
L
the department caused the plaintiffs' cattle to
injure each other. The cattle had been driven
some distance before they were placed in the
trucks, and it is quite as likely that some of
them lay down from fatigue as that they were
knocked down by carelessness in handling the
train. Bveiy facility is afforded by the regula-
tions for the conveyance of cattle drovers in
trains carrying cattle, and the department can-
not reasonably be expected to provide attendants
to lift up any cattle which should happen to lie
down or fall. In cases of this nature judges
must be careful not to import their own
knowledge of what they have known to occur.
As frequent tiavellers by railway, they con-
stantly witness the greatest carelessness on the
part of subordinates of the department, but they
are not entitled to assume that such
carelessness was exhibited in particular cases
coming before them. In the present case we
only know that two of the plaintiffs' oxen were
injured by the other oxen while being conveyed
by train, and in the absence of proof that snch
injury was facilitated by the defendant's uegli-
gence,l am of opinion that the plaintiffs are not
entitled to recover more than the amount ten-
dered. As to the fourth ox, which arrived at
Mowbray in an injured condition, that injury
was also caused by trampling, and in the
absence of proof of the defendant's negligence,
the claim cannot be allowed. The judgment of
the Court must therefore be for the plaintiffs
for the sum of £15 ISs., comprising the sums of
£8 88. and £7 10b. already mentioned, and as
the defendant has only tendered the sum of
£7 10b., the judgment must be with costs.
Mr. justice Buchanan : In concurring in the
decision just stated, I only wish to say that in
my opinion contracts with carriers are
governed by the same principles of law, whether
the carriers are carriers by land or by water.
In the ease of carrier not returning property
entrusted to him in like good order as it was
received, the onus is upon him to show that he
is not at fault. In this case there was not much
evidence led on this part of the case, but look-
ing at the practice of butchers which has been
proved, the nature of the injury caused, the
habits of the cattle carried, and the fact that
the trucks provided by Government were in
good order and that the consignor himself
undertook the loading of the trucks, I think the
Bailway Department has sufficiently discharged
the onus upon it of proving due diligence.
There is no evidence of contributory negligenoe,
and there is sufficient before us to account for
the injury to cattle without there being any
default on the part of the carrier. There is
one other matter I would refer to, apart
74
altogether from the le^al questioDs Involved.
The evidence discloBes a mode of treatment of
cattle carried on the railway, which if not
absolutely cruel is the reverse of considerate. I
know there is a difficulty in watering cattle
when on the train, in fact they will not take
refreshment in the trucks, and sometimes not
for hours after they are released, but at the
same time I certainly do not think this justifies
the poor brutes being kept four days and
nights without food or water, as wa<« shown the
cattle were in this case.
Mr. Justice Maasdorp .* I concur in the judg-
ment, but I am inclined to take a different view
in some respects of the law applicable to the
case. It is necessary in the first place to ascer-
tain generally what principles and rules of law
govern the rights and liabilities of the parties
to this suit It is contended for the plaintiffs
that the Roman law with respect to the liabili-
ties of masters of ships, innkeepers, and stable-
keepers, contained in the edict of the Praetor
given in the Digsit (Book 4, Title 9) is applicable
to this case in all its original severity. On the
other hand it is said the duties and responsi-
bilities of the defendants are similar to those of
depositaries for hire, who are bound to use
ordinary diligence, and are liable only for damage
and loss resulting from ordinary negligence.
And it is further argued for the defendants that
even supposing their responsibility must be
measured by the rules of the civil law, the de-
fendants would come within the exception in-
troduced by the decisions of the Courts of
England, where principles similar to those of
the civil law are stringently enforced. This ex-
ception is admitted in cases where animals
which are being carried are injured through an
accident caused by what is called their own
" proper vice." Under the edict of the Praetor,
unless shipmasters, innkeepers, and stable-
keepers restore what theyhave received into their
custody for safekeeping they arejliable in damages.
Under this rule they are held liable for loss and
damage, even though it did not result from any
default or negligence on their part* unless it
happened by what was called fatal damage, or
damnum fataie. Circumstances and events which
would bring losses under the term "fatal
damages" are set forth in detail in the
authorities, and, unless accidents resulting from
some defect or " proper vice '* in the animal it-
self can in some way be included under them,
it seems to me the circumstances of this case
would not bring the defendants within the
exceptions. We have therefore to consider
whether the defendants as carriers by land fall
under the Civil law rules which regulate the
resDonsibilities of innkeepers, masters of ships i
and stable-keepers. They are not expressly
brought within the limits of these rules by the
terms of the Civil law, which has been adopted
in the law of Holland, whatever modifications
the latter law may since have undergone with
respect to the persons falling under it. The
most implicit authoritv upon this
point is Schorer^ who, in hifl note to
Orotius, No. 468, savs
tt
It has been
been advised that a coachman, like the master of
a ship and stable-keeper, is liable for damage
sustained, even without any fault on his part,
but Latiterhach dissents from this view on the
ground that here the reason why the Prsetor
so decreed in the case of those pereonf^, namely,
because that c1a«s of men are a deceitful race
and often very untrustworthy, and frequently
conspire with thieves, fails. Hence, also, when
a wagoner has undertaken to carry a box of
specie to a certain place, and having lost the
money, declared that it bad been stolen and the
theft also dearly enough proved, it was advised
that the wagoner was not liable unless the owner
of the money proved negligence on his part, and
rightly so if he had authority from the owner to
substitute another, otherwise c?/i^a had preceded
accident, in which case even vh majoi* has to be
made good, as I pointed out in note 332." If the
reasoning in the above paspage is sound the
principles of the Civil law will for the reason
there*given not be applicable to the defendants in
this case. Voet, in 1 ook 4, title 9, section 10,
says the double penalty against masters of
ships, innkeepers, and stable-keepers had become
obsolete, the rivour of the Roman law and of
the edict of the Pisetor remaining in other
respects in force in nautas ac sivuleg dlws, I
do not think Voet intended by this
casual phrase similes alios to extend
the law beyond the classes of personi)
treated of elsewhere in this title.
On the whole, I am of opinion that the responsi-
bilities of the defendants are not to be tested by
the principles which have been founded on the
rule of the Civil law, but are similar to those of
depositaries for hire. In that case they were
bound to use ordinary diligence, and are liable
for damage caused by their negligence. As to
the burden of proof, I should say the onus lies
upon the defendants to prove that tlft damage
complained of was in no way caused by their
negligence, but was the result of accident for
which they were not responsible. The loss of
one ox which, according to the evidence for the
plaintiffs, was delivered to the defen-
dants, has not been accounted for, and
the defendants are liable for the consequent
damages. As to the injured animals, I think
there is sufficient evidence to lead to the con-
75
tiwmthftt iht injuries Biast»uied by them were
^KKdby Aooiden^ \>eyonci i^lie oontrol of the
^sifiMltDts, mnd mot tYiroxign their negligence.
That tlie accident ^vas not ca^iBed by the bad
lod QHkilfQl mctnAseroen^ of the train can be
infemd from the laot ^liat none of the other
nimtU in the smne track, or in the other traoka
mtained any injnriea, an<i there is good reason
loroomiDg to tlie oonolnaion that the treatment
to which they ^rere sul>3ecte<i was such that in
aQ probability some of them would snocamb on
thejonmey. For t4[mt treatment the plaintiffs
ihemielTQa were to blame, and I am inclined to
think that the oonaeqneat losses are quite
within the contemplation of owners of cattle
icat long distancea by train, and that they
iiiBore themaeWea by making their calculations
■eeordingly. 1 only ^riah to add that in my
opiidon eren if the atringeot rules of the
Sn^Iiah law, which are aimilar, if not more
screre than the Civil law were applicable to
thia caae, it wonld fall within the exception
mtrodooed by the decisions of the £nglish
Gourta. where it ia held that carriers are not
liable for damage resulting from what is called
the ** proper vice ** of the injured animal. As I
hare aaid before, 1 think the accidents in this
^ue aroae from the exhausted condition of the
tarnishing aninialB, and for that the plaintiifs
themeelTes were responsible. I am therefore
of opinion that the plaintiff are entitled to
jodgment for £15 186., together with costs of
aoiU
rFlaintifE*s Attorney, Gub. Trollip; Defen-
dant's Attorneys, MesarSb Beid & Nephew.]
SUPREME COURT.
[Before the Bight Hon. Sir J. H. db Villiebs,
P.C^ K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maabdobf.J
!1897.
„ 4th.
„ 16th.
Ship — Charter party — Exception —
Negligence of crew— Barratry —
Perils of the sea — Warranty of
seaworthiDess.
2fy a charier party it was agreed that
the d^fendanCs ship ** beiiig tight.
stauttchy and strong^ and every way
Jilted for the voyage^^ should go to
Middlssboro-on-Tees and there load
a cargo of alag manure and there-
with proceed to Cape Town and
deliver such cargo, always afloat in
such dock or usital berth as consig-
nees or agents may appoint, ^*the
act of Ood, perils of the sea, fire,
barratry of the muster and crew,
. . • stranding and other acci-
dents of navigation excepted ; even
when occasioned by the negligence,
default or error in judgment of the
pilot, master, mariners, or other
servants of the shipowner,^' The
ship on her arrival a/ Cape Town
was taken into dock. Certain pipes
in the ship were so fitted that by
opening two valves sea-water could be
made to flow into a ballast tank.
One or more of the crew having
intentionally opened the valves with
the object of sinking the ship.
Held that the damage thus done to
the cargo fell within the exception
of " barratry by the crew"
Held further, that the fact of the
vessel being in port at the time of
the damage did not exclude the opera-
tion of the exceptions.
This was an action brought by plaintiffs
against John Gully as master of the ship
Oberon, representing the ship and her owners, in
which the sum of £3,600 was claimed for
damages to cargo sustained while on the
Oberon.
The plaintifEs* declaration alleged :
1. The plaintifiEs carry on business in partner-
ship at Gape Town under the style or firm of
Woodhead, Plant & Co.
2. The defendant is sued in his capacity as
master of the ship Oberon, now in Table Bay
and as representing the said ship and her
owners.
S. On or about the 18th day of August, 1896,
the said ship was duly chartered by or on
behalf of the plaintiffs in London to load and
convey from Middlesbro'-on-Tees to Cape Town
a full and complete cargo of slag or manure in
bags at a freight of 16s. per ton of twenty
hundredweight gross weight.
76
4. The said cargo was duly laden and reoeived
on board the said ship in good order and con-
dition, and amounted to 19,281 bags of Blag or
manure, and the said ship proceeded on her
voyage and reached Table Bay, and was on or
about the 24th day of January moored in dock
at the South Arm for the discharge of her said
cargo.
6. It became and was the duty of the defen-
dant and the owners of the said ship in accor-
dance with the aforesaid charter party and
relative bill of lading to make delivery at Cape
Town to the plaintiffs of the said cargo in like
good order and condition, but the defendant and
the said owners have failed and neglected to
deliver the said cargo as to part therefore in
like good order and condition, but have
delivered portion thereof, to wit 6,681 bags or
thereabouts, in a damaged condition, such dam-
age having been occasioned by sea water which
reached the said portion of the said cargo after
the said ship was moored as aforesaid, but be-
fore any delivery of the said cargo or any part
thereof.
6. The said sea water reached the said cargo
through negligence on the part of the defendant
or the persons employed by him on board tht
said ship, but independently of such negligence
the plaintiffs contend that the defendant in his
aforesaid capacity is liable for the damage and
loss sustained by the plaintiffs who have
received delivery of the damaged cargo without
prejudice to their claim to recover such damage.
7. The damage so sustained amounts to tbe
sum of £3.600, if a sum of £50 be included
which the defendant contends that the plaintiffs
should pay for the cost of pumping out the said
sea water, but the plaintiffs do not admit that
the said cost of pumping should be charged
against them ; and deducting that sum they are
entitled to claim payment of the sum of £3,460
from the defendant and against the said ship
which has been duly attached by order of this
Honourable Court ad fundandam jurisdictumeni,
8. The defendant in his said capacity neglects
and refuses to pay the said sum of £3,460, or any
part thereof.
9. The freight still due and available under
the aforesaid charter party is £387 48.
Wherefore the plaintiffs pray for judgment
for the said sum of £3,500 sterling, and falling
payment forthwith of the said amount, they
pray for an order declaring the said ship and
the amount of freight, to wit £387 48., execut-
able in satisfaction of the judgment aforesaid,
together with costs of suit,
Or, that they may have such further or other
relief in the premises as to this Honourable Court
may seem meet, together with costs of suit.
For a plea to the declaration the defendant
said :
1. He admits the allegations in the first four
paragraphs contained.
2. Bills of lading were duly signed by the
defendant and accepted by the plaintiffs in
their favoni for the whole of the said cargo.
And the said bills contained the following oon-
ditions : " The act of Qod, perils of the sea, fire,
barratry of the master and crew, enemies.
pirates and thieves, arrests and restraints of
princes, rulers, and people, collisions, stranding
and other accidents ot navigation excepted,
even when occasioned by negligeoce. default or
error in judgment of the pilot, master, mariners,
or other servants of the shipowners. Ship not
answerable for losses through explosion, burst-
ing of boilers, breakage of shafts, or any latent
defect in the machinery or hull, not resulting
from want of due diligence by the owners of the
ship, or any of them, or by the ship's husband or
manager.
3. As to the 6th paragraph he says that he
duly delivered all the said cargo to the plain-
tiffs in terms of the charter party and bills of
lading, but he admits that 6,000 bags or there-
abouts had been damaged by sea water, which
reached the cargo while the ship was moored
in dock through a valve connected with the
ballast tanks. Delivery of the cargo had com-
menced before the said damage was discovered.
He denies the other allegations in the 6th
paragraph.
4. With regard to the 6th paragraph he says
that the water did not reach the cargo through
any default on the part of himself or the per-
sons employed on board the ship ; but even if it
did he says that the owners of the ship are pro-
tected from liability by the terms of the bill of
lading hereinbefore set forth. He does not
admit the plaintiffs' contention in the 5th
paragraph contained.
6. He denies the allegations in the 7th
paragraph, and he says that owing to the quan-
tity of water which flowed into the said ship
through the valve aforesaid the ship and cargo
were in danger of foundering, and that it be*
came necessary for the safety of the entire ship
and cargo to incur exceptional expenditure in
pumping out the said water. The defendant
engaged the steam tug Alert to pump out the
said water, and incurred other liability for the
benefit of the said ship and cargo. He con-
tends that the expenditure thus incurred hj
him was on a general average expenditure, to
which the plaintiffs, as owners of the cargo, are
bound in law to contribute.
77
VHudmitBtbe &llesiktioii8 in tlie 8ih and
^Vttignphs, «&ve tltittt; lie Bays that the
HMWAidnefoT ireiglil^ as aforeeaid is the sum
Wbeidorehe prays iliat tlie plaintiffs' claim
«^7^<iumim.d n^ith. coete.
For i claim ia reconvention the defendant
Mid:
1. He askfl leave to refer tbis Honourable
Court to the masters eet f ortli in Ms plea to the
dedantion.
1 The amooni due by the plaintiffi as a
gcBtfal aYermge contribution in terms of section
S ol the plea la the sam of £^0 or thereabouts.
3. All thiaga have happened, all oondltions
been fulfilled, and all time - elapsed to entitle
kim to demand trom the plaintifEa payment of
tlie fnig;ht aforesaid, and also of the sum of
£00 for general average oontribation. Yet the
plaintiffa aegleet and refuse to pay any part of
theaud sttma.
The defendant claimed in reconvention: (a)
Paynteat of the sums of £657 4b. and £<S0 as
aforeaald ; (jb^ alternative relief ; (e) costs of
The plaintiffs, in their replication, admitted as
to paragraph 2 that they accepted bills of lading
for the whole of the said cargo, and that the said
hills bad certain conditions affixed and in-
itialled by the master in the terms set forth in
that paragraph, but they referred the Court to the
terms of the bill of lading, and denied that the
conditions are binding on them, and alleged that
the bills of lading did not protect the defendants
from liability for the loss or damage the subject
of the action.
to paragraph 4, they denied knowledge of
the cireomstances under which the damage was
eansed, and denied defendant's contention.
They admitted the water was pumped out
from the vessel, and that it was necessary for the
safety of the ship and cargo to do this, but denied
liability for any part of the expense incurred.
la the plea to the claim in reconvention the
defendants in reconvention denied liability for
expenditure of pumping, admitted that
the balance of freight is £687 4s.,
bat claimed to deduct certain pay-
^cu ts and liabilities incurred en behalf of
the plaintiH in reconvention to the amount of
M30O, and tendered to pay the balance (£318 4s.)
upon their claim asset out in the declaration
bein^ satisfied.
Upon these pleadings issue was ioined.
Mr. Searie, Q.C. (with him Mr. Benj')min), for
the piaintiils.
Mr. J, Bose-Innes, Q.C. (with him Mr.
Graham), for the defendants,
For the plaintiffs was called
William Spivey Woodhead. a memlier of the
plaintiffs* firm, who said that the firm had an
office in London. Witness was in London in
August^ 1896, and personally conducted the
business of the charter of the ship Oberon. The
cargo of manure consisted of Albert's phoAphate
powder. This was easily damaged by water. It
contained 40 per cent, of lime, and hardened
into lumps on contact with water. Its value
lay in its fineness, and the powder was supposed
to go through a sieve of 10,000 meshes to the
inch. The firm had dealt in the powder for
several years. When it was caked, it would
take years for the plants to get any benefit.
By the Court : The stuff was not altogether
unsalable in its damaged state ; in fact, it had
been sold by auction.
Examination continued ; £690 was paid on
account of freight in London. The full freight
was £1,874. There was still a sum of £226
78. 8d. in the hands of the plaintiff firm to the
credit of the captain. The ship was docked on
January 21. On that date witness saw the cap-
tain, and asked him what condition the cargo
was in. He replied that it was in sound condi-
tion. Next morning witness was telephoned
for, and when he got down to the Docks he
found great excitement on board and the vessel
apparently sinking. The water appeared to be
beating into the deck scuppers. Witness after-
wards saw the captain, who stated he had
found the valves open, which had allowed the
water to flow into the ballast-tank, which
contained cargo. The captain told witness
the ballast-tank was connected with the
sea by two valves. The valve- wheels on deck
must have been improperly turned in order to
admit the water into the ballast-tank. The
ballast-tank and manholes being uncovered, the
water flowed into the fore and aft holds. The
captain stated that his attention was called to
the ship sinking by a hawker on shore and the
captain found that this was so. The captain
then had the vessel pumped, and the tug Alert
was employed in this operation by the advice of
witness and surveyors. Witness called in Messrs.
Herbert and Watson, and went down to have
the cargo surveyed. This was on the Saturday
morning, when the ship was two feet higher and
the water out. It was January 27 before the
trucks were down to get delivery. The captain
wanted witness to sign an average bond, which
he refused to do, as the captain did not wish
anything put in as to the valve being found
open. Fifty pounds was paid into the bank on
joint account to cover expenses of pumping.
This was done instead of signing the average
bond. Witness thought the best way was to
78
have the damaged cargo sold. There was
no machinery here which would grind
the manure sufficiently fine. The net
proceeds of the sale of the damaged
cargo was £466 17s. Sd. The stuff was sold by
plaintiffs' firm at a price of 96b. a ton This
showed a loss of £1,969. Nearly all the good
cargo was sold.
Cross-examined : Witness was now familiar
with the bill of landing. Upon it was pasted
what was called the negligence clause. Wit-
ness held that this clause ^ as not binding upon
plaintiffs. He did not suggest that there was
any fraud in the pasting on of the olaute. The
tank was for carrying cargo, but seeing that the
valFes were unlocked and unprotected, he
thought the cargo was improperly carried in the
ballast tank. Plaintiffs' firm charged commis-
sion on the sale in accordance with the regula-
tions of the Ghiimber of Commerce. Witness
endeavuured to get the damaged stuff re-
crushed, but was not successful. A full week's
notice of the sale was given. Witness proposed
that the captain should take the damaged cargo
back to Middlesborough as a means of reducing
his loss.
By the Court : The cargo was insured free of
particular average, which meant insured against
total loss only.
Cross-examination continued : The well
went down right to the bottom of the ship. It
was easy for a sailor to get down. Mr. Advocate
Searle had been down it. The wheels
of the valves could not be turned from
the deck. A person would have to go down to
a platform to turn the wheels, which could not
be turned except by someone acquainted with
such machinery. The captain said he found
the canvas cover of the well on the deck, and
the rope missing.
Hans August Paul Burmeister said he had
been a sea captain, but now had a berth ashore.
He had seen the Oberon and the well where the
two wheels were. Vessels of this kind were
rare. He remembered one particular ship — the
Bermuda -with similar valve openings and
ballast-tanks coming here some years ago. On
the Bermuda the valves were protected, a
special chamber nine feet square being built
and locked up, the key being in the captain's
possession. When he saw the valves of the
Ot>eron the thought struck him there should
have been a proper lock to the lid, so as to pre-
vent any tampering.
Cross-examined: Witness had had no ex-
perience of these ships himself.
John A. 8. Watson, a member of the firm of
Messrs. Searight k Co., said he had carried on
business in Cape Town since 1878. In company
with Mr. Herbert witness surveyed the damaged
cargo and made two reports. In the seoood
report they recommended that the damaged
cargo should be sold. The damaged cargo was
not in a merchantable condition. He had had
experience as to chemical manures. He could
not recommend the stuff to be sent back to
Bngland to be re-treated because of the expense.
He had never before seen a vessel with ballast
tanks of the same build as the Oberon. He
had reen ships with smaller and separate tanks,
but never one like this, with one big tank amid-
ships.
Cross-examined : Witness knew the ship was
elaased Al at Lloyds, and he certainly would
not go against the surveyor's recommendation.
Joseph William Herbert, partner in the firm
of Messrs. Attwell & Co., shipping agents,
corroborated.
H. B. Piokstone said he had purchased some
of the damaged stuff, which oould be crushed
with a spade. The stuff oould be used for
orchards, but was not much use for nursery
purposes.
This dosed the plaintiffs' case.
John Gully, master of the Oberon, said the
owners were Messrs. James Fairlie, of Glasgow.
The Oberon was one of three ships belonging to
the same owners. They all had ballast-tanks.
The Oberon was built three years ago last
September, and was classed 100 Al at Llovds,
When she left Middlesborough the ship was
sound and seaworthy. Witness had been at sea
twenty-five years. Ko one could see one of the
wheels mentioned unless he could see through a
6-inch plank. The apprentice was on duty on
the night of January 21. He was intelligent
and reliable. On the morning of the
22nd Captain Sinclair, the marine surveyor, came
on board, and certified that the hatches were
well battened down. About a quarter past nine
a boy, a dealer in feathers, came on board and
said something as to the position of the ship in
the water. Witness then found the ship was
considerably below her marks, and the carpenter
at once made soundings. The carpenter was
now in prison for attempted desertion. Tbe
carpenter said the tank was full of water. They
found the valves open, and they were at once
dosed. Then the ship was pumped, first by
hand, then by steam, and then the Alert came
along and rendered assistance. Witness thought
the valves must have been opened about mid-
night on the night of the 21st. If the tank were
empty, it would take about twelve hours to fill
It would be difficult to get on board except by
the gangway. The crew were not now all on
board. The carpenter was in gaol, one of the
crew was in hospital, and four had deserted^the
79
fimi ten dmys after the accident. WitDess had
htd no trouble with hia crew ; the mate had a
'*digfat altercation ** with a man in the roadB.
The mate was charged with aeeaultand was fined
1(%. Measn. Haawell Sc Stephen had certified that
the Talres were in good condition, and could not
he opened except by hand and of set purpose.
Plaintiifa asked for security f or£2,000, and wi tness
wired to the owners to that effect. Witness
made all endeavoura to trace how the valves
were opened without sncoess. No stranger
would have understood the nature of the valves.
Craaa-examined : Witness had not sailed in a
sailing ship with this kind of ballast tank
hefore. So far as he could ascertain, the cargo
arrived in dock in a sound condition,
Peroival Ethelbert Hahn, apprentice on board
the Oberon, was on duty between six p.m. on
January 21 and six a.m. on January 22. His
doty was to walk up and down and see that
thinga were right During that time Charles
Johanaen and F. Johansen, an apprentice, the
carpenter, and a seaman left the ship. The men
went on shore by the gangway. Charles
Johanaen and the seaman came on board again
about midnight ; the others came on board be-
tween twelve and one o*clook« Witness spoke
to them. One of the men (Scott)
went forward; he could have gone
to the valves without witness seeing him.
When Scott came back Mattio, the carpenter,
went ont of the deck-house for about five
minutea. When the carpenter came back, Scott
went oot again for a few minutes. After that,
io far as he knew, the men turned in. So far as
be knew no one else came on board that night
Charles Johansen had siuce deserted.
Croaa-examined : Witness was often on duty
during the night, and he walked up and down.
Sometimea witness sat down. The ship came
xato dock about noon ; and witness could not
tell all the people who came on board from the
time she was moored. Witness was not on duty
the prerious night.
Hugh K. Haswell, resident engineer for the
OasUe Company, said he inspected the ship on
January 22, and advised that the services of the
Alert should be obtained. This was for the
benefit of both ship and cargo. There was
nothing improper in putting cargo in such a
tank as that in the Oberon. It was hardly
possible for anyone not acquainted with the
working of the valves to open them.
Croas-examined : Witness had mostly had to
do with steamers, but had had experience in
nrveying ships. He had not seen many sailing
ihips built like the Ol>eron He did not remem-
ber the Bermuda. For greater security the well
ihonld have been locked.
William Stephen, Superintendent of the
Alfred Docks, corroborated the evidence of the
last witness. He had only seen one such ship
as the Oberon before. He agreed that a stranger
could not have turned on the valves.
William Toms, first mate of the Oberon, was
on board most of the time she was in the Bay.
There wan only one visitor, a friend of the cap-
tain and witness. When the ship came into
dock she was drawing the same water as in the
Bay. The man-hole was not in a conspicuous
place The covering was on when the vessel
came into dock. Next morning the rope had
disappeared from the man-hole. Two valves
would have to be opened before the water could
come into the sh^p.
Charles Duncan, second mate of the Oberon,
said that when the captain went ashore he was
with the boat's crew. He never took any\isi*
tors to the ship.
Arthur T. Edwards, manufacturer of manures
at Diep River, said he had a complete plant for
crushing. He examined the damaged stuff, and
he could have crushed it through a sieve of
1,200 holes to the square inch. He could have
crushed it to d,OCO to the square inch, but would
have had to get special sieves. He thought the
stuff could have been cruehed for about 32s.
per ton.
Cross-examined : The finest mesh procurable
in town was 8,600 to the Fquare inch.
Mr. Woodhead (recalled) said : £4 15s. perton
would be the value of the manure at the rail-
way-station. The charge per ton for delivery
from the Docks to the Railway-station would
be 3s. per ton.
This closed the evidence.
Mr. Searle, Q.O., for the plaintiffs: It is
admitted that the cargo was brought sound to
the Docks on 2l8t January, and that a large
portion of it was delivered in a damage«l
condition. The onus is on the defendant to
show why it was not delivered in good condition.
lheFreedo/n(Ij.U.,3 P.O., 691). It is difiicult
to see from the plea what the defence is,
though the defendant sets out the negligence
clause. But such a clause is interpreted strictly
as against a shipowner ; it is for him to show
that if he contracts himself out of liability ; the
present case falls within the exceptions. He
therefore must show that this damage is due
either to a peril of sea, barratry, or accident of
navigation. Scrvtton (Charter Parties and Bills
ot Lading, p. 185, and the cabes there cited) deals
with negligence of master or mariners. See
7aylor v. Liverpool 8,8, Co, (L.R. 9, Q.B. 549) ;
The Chartered Ba k v. Netherlands Co,
(10 Q.B.D., 621); Xorman v. Binnington
(25 Q.B.D., 477) ; Burton v. EnglUh (12 Q.B.D.,
80
218) : Abbott (Mercantile Shipping, 829. 838) ;
Nota/ra v. Henderton (41 L.J., Q.B., 168). As to
perils of sea, see Scrntton (page 176) ; Pandorf
V. Hamilton (16 Q.B.D., 629, 633)— and the
definition of *' perils of sea " there given ; The
Accomac (15 Prob. Div.. 210); The Sonthgate
(Prob. Div., 1893, page 329). See also SeruUon
(pp. 187, 188), as to when voyage can be con-
sidered as terminated for the purpose of the
bill of lading ; The Caiiada Shipphig Co, v.
British Shlpofciiert, Association (23 Q.B„ 344)
and The Pharaoh (Prob. Div., 1893, p. 30).
From the above cases it will be seen that the
loss in the present case was clearly not an
accident of navigation ; it is not a peril of the sea
when the ship is moored safely in dock and
accident happens there through regligenee of
some person. Vie Chasea (4 L.R., A. & E. 446).
Neither was it barratry, for barratry must be
founded on fraudulent intention— and arise
ex malefiei^ and the evidence does not support
this. Fletcher v. Ingli^ (2 B. & A., 315). Our
case of Philip Bros. v. Koop (4 Juta, 53) was
overruled by Pandorf v. Hamilton (16 Q.B.D.,
629), though in the latter case there was no
negligence. See also The Glen Ochiel (Prob.
Div., 1896, page 10); Woodhouse v. Christian
^' Co, (4 B.D., 183). It is not for us to prove
how the damage was done, it is for the defen-
dant to show how it was done and that it falls
within the exceptions provided for in the bill of
lading. Counsel also cited Th^ Carron Pa/rk
(15 P.D., 207); Strange v. Steel (14 App.
C, 601).
Postea (March 3rd).
Mr. Innes, Q.C., for the defendants: To
arrive at a correct estimate of the liability of
the defendant we must look at the documents
constituting the contract of affreightment.
The chief one is the contract in the charter
party, and particularly to be noted is the effect
of the clause contained in the slip admittedly
attached to the charter party before execution,
in which all liability for damages from acci-
dents, perils of the sea, and barratry, is pro-
vided against even when the damage is
occasioned by the negligence of the master.
The bill of lading is in all essential respects the
same as the charter party in this case. What
is the ordinary effect of such an exception 7
Krohn V. Nurse (Buchanan 73, page 86), and
Philip V. Koop (4 Juta, 53); show that in
ordinary cases where there is no negligence
clause the shipowner is liable for negligence
even if the damage is within the exceptions,
but when the negligence clause is contained
in the charter party the shipowner is guarded
against at least negligence of servants: Steele
V. State Line Co, (3 App. Oases, 72). True he
cannot guard against hts own neglect in pro-
viding an unseaworthy ship. Unless therefore
the ship's tank in (he present case was so con-
structed as to render the ship unseaworthy the
owner is guarded. Defendant urges that the
water was let in by one of (he crew— and we
are guarded against liability for this because
of the exception as to barratry. If not by the
crew, then by whom was the water let in ? Then
it is an accident due to an unknown cause, it is
a peril of the sea. The mere fact of ita being
due even to an outsider assisting the forces of
nature does not take it out of the category of
perils of the sea. There was no water when
the ship came into dock, next morning it was
fulL This could have been caused only (a) by
an outsider, {b) by the crew acting negligently,
{c) by the crew doing it wilfully. The Court
sitting as a jury would be warranted in finding
the facts inconsistent with the act having been
done by an outsider. What motive eoold an
outsider have ? Besides, the man who did it
must have known all about tanks and valvee.
The whole matter is surely highly suspicious as
against the crew. It is pretty clear that one of
the crew did let the water in, and if he did it
wrongfully it was barratry at least. Evi^n
if it had been done negligently our oase
would have b^en (stronger — and the case of
The So%tthgate would apply (Prob. Div. l&'S.
page 329). If the act was barratry, see Sevan
(on Negligence, Vol. II., page 1,299);
McLachlan (Law of Merchant Shipping, p.
263). Barratry means some fraudulent, wrongful
act by the master and crew against the interest
of the ship or cargo. If the ship is lying in
the dock— is her voyage finished? Ber legal
charter party voyage is not finished so lonj^ as the
cargo remains to be dealt with thouj^h the
actual sailing voyage is finished. Laurie y,
Do^tglas (16 M. and W., 746) seoms in conflict
with Tht Accomao (15 Prob. Div., p. 208). But
see The Carron Park (15 Prob. Div., p. 203) ;
The Softthffote (Prob. Div. 1893, p. 829). There
may be a peril of the sea even where there is
no navigation.
The Court intimated that it was not necessary
to argue the point of damages.
Mr. Searle, in reply, referred to The Olenfruin
(10 Prob. Div., 103) and Tattersall v. Nati^mal
Steamship Co, (12 Q.B.D., 297); Xeatittas (12
App. Cas., H.L., 512); Armoftld (on Maritime
Insurance, Vol. II., page 76') ; Muter^s Execvtors
v. J&i^s (3 Bearle, 366) ; Scruiton (page 188).
C.A, V,
Postea (March 4th) the Court delivered judg-
ment.
De Viriers, C.J.: The plaintiffs seek to
recover from the master of the ship Oberon, as
81
>^»««^^^aR the owTi€»rs, tlie sum of £3,600 for
'^^ Aoofe to a. c&rso o^ 8la>? nmnure ijon-
^^tti«pla.iiiUfl[R, ^vrlio were charterers of
^^V TbecVM^-ter x>arty, which was executed
wWdoii ^Q^criUed tl^e ship as classed 100
ilUoyiJft wiA a& •*l>eioi5 tija:ht, sUunch and
*M|, md every way fitted for the voyage."
ifeisUp of paper, whicli Ib admitted to have
Wo ittached U> the cbarter party before its
exKntioii, the f oWowinjir clause occurs : '* The
iciof God, perWR of the aea, fire, barratry of the
master and crew, enemies, pirate«», assailing
thievea, aneai and restraint of princes, rulers
and people, coUialons, stmndin^, and other
aeeidenU of navigation excepted ; even when
occaaioned by the negligence, default or error in
jodgineni of the pilot, master, mariners, or
otber aeTvanta of the shipowner/* The ques-
tlmia to be determined are whether the ship
was seaworthy when she took in the cargo, and,
if ahe waa, whether the damage falls within
say of the exceptions contained in the charter
party. A portion of tlie cargo was stowed in a
part of the ship wnich can also l)e used as a
water-balltft tank. In order to fill this tank
with water, ft is necessary to open two valves,
ooeof which allows the water to rii<e in a pipe
eoainianicating with the sea, and the other
allows the water to flow into the tank. As the
water flows into the tank, the ship sinks deeper
iato the aea and thus causes the water to
eootinae flowing into the tank until it is filled.
Ib order to reach the wheels fur turning the
▼aWea. it is necessary for a perse >n lo go down
a manhole five or six steps to a platform, which
if* abont eight feet l»e]ow the d«ck and about
fifteen or sixt en feet aljove the boUorn of the
fihjp. There was no defect in the valres, nor
eoold they have been open d without the use of
sotne force. The manhole was kept closed by
means of a wooden cover over which there was
a canvas cover. The ship arrived in lable Bay
OD the 23rd of December Ust, and entered the
dock on the 2l6t of January. On the morning
of the 22Dd the discharge of cargo was com-
menoed, and between nine and ten a.m. the
mmster observed that the ship was settling
down in the water, and on investigating into
the cause, he found that the two valves had
been opened and that the water was entering
into the ballast tank. He afterwards used
every effort to discover the person who had
c»pened the valves but was not successful. Judg-
ing by the quantity of water which had flowed
into the tank, he came to the conclusion that
the valvi a had been opened about midnight
between the 2l8t and 22od of January. The
emrga io the tank was damaged by the seawater
»]|d ft is for this damage that the present
action is brought. The plaintiffs contend
that the facility with which the vaWes
could be opened is evidence of fauKy
construction and that the Court is bound
to find that the ship was not in a seaworthy
condition. In support of this contention they
greatly rely upon the fact that after the
damage had been done the master secured the
valves by means of handcuffs to prevent a
similar occurrence in future. The ship is
admittedly classed 100 A I Lloyds, which is said
by one of the witnesses to be the highest dais
register. In the face of this fact it requires
more evidence than has been adduced on
behalf of the plaintiffs to satisfy the Court
that the ship was not " every way fitted for the
voyage." A wooden ship may be tight, staunch
and strong and yet it would be as easy to bore
a hole in her bottom as it was to open the
valves of the Obex on. Precautions were
afterwards taken to prevent the valves being
opened again, but even these precautions would
not be sufficient to prevent one of the orew
from forcing open the handcuffs and opening
the valves when a convenient opportunity
offered. We are dearly of opinion that the
ship was seaworthy when the cargo was loaded
and at the time of sailing from the port of
loading. The next question is whether the
defendant is protected by any of the exceptions
which I have enumerated. We are satisfied,
after a careful consideration of the evidence.
that the valves were intentionally opened with
the object of letting in the water, and that this
was done by one or more of the crew. It was a
case therefore of barratry by the crew, just as
much as if one of the crew of a wooden ship
were to bore a hole in her bottom with the view
of scuttling her. If this view be correct then
clearly one of the exceptions applies. But
assummg that the evidence be held insufficient
to prove (barratry, we are of opinion that the
damage was occasioned by a p^ril of the sea.
The exceptions in the present case embrace
perils of the sea. &o., " even when occasioned by
the negligence, default or error in judgment of
the master or mariners." so that the negligence,
if there was any, of the master or mate in not
keeping a proper supervision over the valves
cannot be relie 1 upon by the plaintiffs.
The main objection taken by them to the
applicability of the exceptions is that the
vessel was in dock at the time of the accident.
I take the true lule, however, to be as stated by
Mr. Bcrutton on Charter Parties Article, 9i, that
"exceptions in the contract of affreightment,
unless otherwise clearly worded, limit
the shipowner's liability during the
whole time he is in possession of
82
the goods as carrier, and therefore apply
during the loading and diecharging of
the goods." The cases on the point are not
perhaps reconcilable with each other, but in
none of those where the shipowner has been
held liable, was there a clause like the one in
the present case. The terms "other accidents
of navigation " in the charter party cannot
have been intended to limit the preceding
exceptions to the time when the sh'p was
actually on her voyage. Thus if the ship had
been destroyed by fire while in port, the
exceptions would have been applicable, and it
bai» not been contended that if the damage now
in question was caused by barratry, as found by
the Court, the shipowner would have been
liable. We entertain no doubt whatever that if
the damage had been done on the voyage and
not in the port the exceptions would have
applied. The lose would certainly have been
recoverable under a marine policy, as due to a
peril of the sea. To use the language of Lord
Herschell in Hamilton v. Fi'oger (4 A.C., 530),
*'it arose directly from the action of the sea.
It was not due to wear and tear, nor to the
operation of any cause ordinarily incidental to
the voyage, and therefore to be anticipated."
In that case rice had been shipped under a
charter party and b41 of lading which excepted
" dangers and accidents of the seas." During
the voyage rats gnawed a hole in a pipe on
board the ship, whereby seawater escaped and
damaged the rice, without neglect or default on
the part of the shipowners or their servants. It
was held by the House of Lords, reversing the
decision of the Court of Appeal, that the damage
was within the exception, and that the ship-
owners were not liable. In the case of the
Xantho (4 A.C , 503), the question was
discussed by the House of Lords whether the
term " perils of the seas " should receive
a different construction according as they
occur in contracts of affreightment or in
policies of insurance, Lud was -inswered in the
negative. '* Was it," said Lord Bramwell, "by
a peril of the sea that the defendants' ship
foundered? The facts are that the seawater
flowed into her through a hole and flowed in
euch quantities that she sank. It seems to me
that the bare statement shows she went to the
bottom through a peril of the sea. It is
admitted that if the question had arisen on an
insurance against loss by perils of the sea this
would have been within the policy a loss by
perils of the sta. Are the words to have
different meanings in the two instruments? '
and he answers this question with a decided
negative. Lord Macnaghten was equally
emphatic. " The Court of Appeal," he said,
" start with the assumption that the same words
have different meanings — when used in |>olicie8
of as«uraoce and when used in bills of ladiof?.
For that assumption there \v> not, I venture to
think, any foundation. Different oonsideim-
tions, no doubt, apply to the two oontracts, a
contract of indemnity and a contract of car-
riage, and the same event may have a different,
result in the one case from what it would have
in the other, but in mercantile contacts ao
olosely connected the same words must have
the sam3 meaning." H* Iding as we do that a
policy of insurance against perils of the seaa
would have covered the damage done to the
plaintiff's cargo wo are of opinion that the
defendant is not liable for the loss. The
amount claimed in reoonvention is admitted to
be due and judgment must be given accordingly.
Their lordships concurred.
[Plaintiff's Attorneys, Messrs. Van Zyl A
Buissinn^; Defendants Attorney, C. C.
Silberbauer.]
SUf^REME COUR r
[Before the Right Hon. Bir J. H. db Villikrs.
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Juatice
Maasdobp.]
PROVISIONAL ROLL.
BANK OF AFBICA V, BENNETT
AND 0THBB8.
( 1897.
(Feb. 25th.
Mr. Tredgold applied for provisional sentence
on a promissory noce for £16 \ Two of the
parties had confessed judgment.
Granted.
BMUT8 AND KOCH V. VAN JAABAVKLD.
Mr. Jones ap|ilie<l for provisional senleoce on
finotarial l>ond for £4 0. dated January .HI,
1894. and interest at the rate of 6 per cent.
Granted.
JOBLING AND CO. V. O'CONNOR.
Mr. Tredgold applied for the discharge of the
provisional order for sequeatratiou in ihU
matter.
G rap ted.
8^
UGBOKK, HAKKlft AND STBPHEN, AND 0THEB8
V. SMTTU.
Mr. iTvdgold applied thai the retarn day be
ateaiM to March 12.
Grmatod.
REHABILITATIONS.
Be JOUH AUTBBD OBBBN.
Od the applicaiioD of Mr. Cloee, the rehabili-
Utioii of John Alfred Green was granted.
JU KDWAKD JOUJS PBIMGLK.
Ob Ihe applicatioo of Vr. Close, the rehabili-
tatioD of Bdward John Pringle was granted.
GBNBRAL MOTIONS.
IK THK MATTER OF THE PETITION OF JOHN
LAWBON GAMEBON.
Articled clerk — Attorney —Period of
Service.
Mr. Macgregor applied for leave to petitioner
to oonnt the period Mr. Cameron has
already Mfred as an articled clerk in Soot-
laad, Tiz., two years four months and one week,
■ad to allow him to indenture himself to an
attorney in this colony to serve the remaining
period of seven months and three weeks, so as
to oomfdete a three years' service, and be there-
after admitted an attorney of this Court.
The application was granted, save that a
period of twelve ciontha' service was ordered,
with prodnction of caitiftoato that applicant has
psned the attorneys' examination before admis-
[Applicant's Attorneys, Messrs. Van Zyl 6c
B«i»nn€.J
IS THE MATTER OF THE PETITION OF SARAH
SOPHIA VAN SITIERT.
Mr. Searle, Q.Om applied for the appointment
of a curate ad litem in proceedings to have her
husband Peter John van Sittert declared of un-
MKUid mind, and for leave to give evidence by
aflldavit.
The Court granted the application. Mr.
Meyer, chemist and J. P., of Queen's Town, in
viiose employ the alleged lunatic had been for
tbirteeo years, was appointed curator ad
tUm,
CHIVBLL V. CAELYON. {KeK^^th,
Marriage — Community —Domicile — Im-
movable property.
Qio'siinnn suhmiHid by the JJhjk
Cotirf It/ Euglftml/or (he nphdon nf
th*' Sftprt'inc Court.
1. Amsuiuintj Unit two sj*fntj<r8 u'tn:
(hull trit I'd in thin Colony at thi' tiim'
of their inurritiye here^ and rcmtiiurd
8o domicHi'd hfre diirini/ their Joint
iiri'H^ windd rertnin imiuorafde pro-
pf'rty in Enylaml inwrhosed Ity fhf
hnalxtnd dnrinfj the salmi stenci- of thr
marriaye ftdl trithifi the rinn inanity
o/ J trope rty mated by the morriaye f
2. Assuniiny that the nponses were go
domiciled at thf time of their mar-
riage^ but 9id)He<iUfntly changed their
domicile to an English d*nnicHv
before the jmrrhase of the immorabit
property^ but during their Joint licesy
would Htu'h change oj domicile hare,
any effect upon their respective rights
in regard to the said property.
Held, that the Jirst qu4'Mtion must be
answered in the affirmatice^ and the
Hfcond in the negative.
This was a case stated for the opinion of the
Supreme Court by the direction of his lordship
Mr. Justice Stirling, Chancery Division, High
Court of Justice, England. The facte of the
case were: On August 3, 1887, William Chlvelli
then a widower, married Caroline Dorothea
Dickson, then a widow, at Kimberley. No ante-
nuptial contract was executed. Mr. W. Chivell,
at the time, had one son (a defendant in the
present action), William Richard Chivell, born
during the previous marriage in England : his
wife had had three children (defendants in the
present action) by her tiret marriage, who were
born in the Cape Colony. On February 10, 1888,
Mr. and Mrs. Chivell made a joint will at the
Cape of Good Hope, appointing the survivor
and children of the prior and existing marriages
to be sole and umversal heirs, with a life usufruct
in favour of the wife. There were three children
(plaintiffs in the present action) issue of the
marriage between the testators. The testators
proceeded to England (which was Mr. Chivell 's
domicile of birth), and during their joint lives
acquired immovai)le properties there in the
name of Mr. W. Chivell, to whom it was con-
veyed. Mr. Chivell survived his wife and re-
i
8d
the question at issue was settled by the procla-
mation of ]2th Ju]y, 1822, added that " the
great body of civil lawyers agree with Voet in
upholding the ubiquity of the matrimonial
domicile by virtue of the tacit contract which
is everywhere of legal obligation." In the sub-
8e<|uent case of Black v. Black's IJj^ccufors (3
Juta, 200), parties who bad been married in
Scotland changed their domicile and came to
reside at the Gape, and the question arose as to
the rights of the wife and of her heirs ab
hites'ato in respect of immovable property
acquired by the husband in this colony. It was
not even contended that the change of domicile
gave the wife any different rights in respect of
.immovable property situated here from thote
which she would have enjoyed in Scotland. Ic
was admitted that the law of Scotland must
prevail, and the only question to be decided wus
what the law of Scotland was. In the present
case it is not stated where the money came
from to pay for the property purchased in Eng-
land, We may assume, however, that the money
was paid by the husband himself. I hat money,
at all events, until paid to the vendor,
formed part of the community between the
spouses. Does the fact that it is invested by
the husband in the purchase in his own name of
land situated in England deprive the wife of her
share in the community ? If such were the
law a husband married here in community of
property, who wishes to deprive his wife of her
share, might change their domicile to a foreign
country, where community does not exist, and
then with impunity obtain the wife's share for
himself by investing the whole of the partner-
ship in immovable property situnted ia such
foreign country. In this colony parents often
prefer to see their daughters married in com-
munity instead of by ante nuptial contract, be-
cause they consider the tacit contract of com-
munity of more advantage to their daughters.
All the advantage might, however, be lost if the
husband had it in his power by a subsequent
change of domicile and purchase of land in the
new domicile to transfer his wife's property to
himself. In answer to the iirst question, the
Court is of opinion that the immovable pro-
perty in England falls within the community of
property created by the marriage. In answer
to the second question the Oourt is of opinion
that the^hauge of domicile of the parties hus
no effect upon their respective rights in regard
i'O the said immovable property.
Their lordships concarred.
[Plaintiff's Attorneys, Messrs. Beid k
Nephew ; Defendant's Attorneys, Messrs. Fair-
bridge, Ardeme & Lawton.]
GOOSBN V. G008BN.
Mr. Jones appeared for the plaintiff; defen-
dant in default.
This was an action for the restitution of con-
jugal rights, and failing that, foi divorce. The
parties were mairied at Seymour in 1881, and
there were two children of the marriage. In
September, 1884, the defendant deserted the
plaintiff, and had not since contributed towards
her support.
Henrietta Ann Goosen, the plaintiff, said sbe
was married by the Rev. Mr. Shaw, at Seymour,
in the year 1881. The clergyman, Mr. Shaw,
had since died. Witness lived with her husband
at Tarkastad for about two years. Shortly after
tbe marriage her husband wa« convicted of
fraudulent insolvency. There were two children
— a boy and a girl. Defendaut was in prison six
months, after which he came back and ttnyed
with witness about a year. After the desertion
witness went back to Tarkastad. Defendant
left witness at Seymour, paying he was going to
Adelaide. Just after the desertion witness
received a letter, but bad never seen the
def 1 ndant since ; nor ha 1 he supporte 1 h<T in
any way.
The Court granted a decree for the restitution
of conjugal rights, defendant to return on or
betoie March 31, failing which a rule nUi would
be granted dissolving the marriage, and giving
the plaintiff the custody of the two minor
children.
[Plaintiff 'h Attorneys, Messrs. Scaitlen &
Syfret.]
J0NK8 V. MATTHEWS.
I 1897.
{ Feb. 25th.
/ „ 2f>th.
Insolvency — Fidei-rinmnitisum — Vest-
ing - Conditional legacy.
In the absence of amj htdicatloHtf o/'
(I contrary intention in the to/V/, pm-
perty bequeathed subject to a lidei-
commissum does not erst in (he
fidei-commissary teyntee until the
expiration of the precimtn fidw-iary
interest. Certain land hacing beat
l)e(iueathed to the defendant's mother
subject . to a fidei-commissum upon
her death in his favour he became
insolvent^ whereupon the plaitUifi'
purchased fJie insolrenfs exj>ectnftry
from the trustee. The df^endanf^s
mother died after the account of tJtf
insolvent estate had been cofifirnted.
87
Held t\»at ih*- ithtitttiff' tntM mt
thrdrffttditfii.
The cft*e tvf Van Bredj. r. l^raster
Thii wu an action brought by Charles
Teuint Jones ai^ainBt George Frederick
XiUb«vft,ind\vi(iaa1l3' and in his capacity as
aeatort«stauieutar3' of the estate of the late
Jiae Matthews, to obt:iin an order for declara-
tioD of riglita and transfer.
Theplaiutiff^B declaration was as follows:
'. The pfAaintiff reHiden at Wynl)erg, in the
Ca|« DivWiun; the defendant resides at Port
KUsabeth ; and he ie sued individually, and also
in kia capacity as executor testamentary of his
mother, the late Jane Matthews.
1 On the 27th April, 1852, one John Parkin,
the fatht r ol the said Jane Matthews, and the
l(Tamlfath«T of the ilef endant, executed his last
will and testament, in terms of whi h, infer
a/M, 'he Vjeqneathed to his daughter Jane, then
laarried to one John Matthews :
C«> Certain lot of ground marked No. 19,
ntoate in Bird-stre* t. Port Blixabeth, purchased
\ff the testator from William Harris, as per
deed of tranafer, dated the 2 st March, 1819.
\() Certain piece of Goveroment s^nnd,
•itumted within the limits of the Garrison ground
at Port Kliaabeth, purchastd by the testator
from Brnest F. C. G ie, as per deed of tranafer,
d«tcd the 6th Deotmiber, 1847.
(O Certain lot of ground with the buildings
th«-ieou, situa ed al Port Elisabeth, marked
letter F, purchased by the testator from the
troi^eea of tlie insolvent estate of Alice Eliza
Wh>brew, a^ per deed of traubfer, dated 16th
I>€eeuiber. IS4'>: upon tnidt that she nhould
■taatl pnsaesttd of Ihc same, and be entitled to
i^eeelve the annual rent, incoiue, and profits
therefrom for her on and during her lifetime ;
and that after her death the whole of the said
property fhouhl revert to and become the pro-
perty, free and euoacum))ered, of the lawful
iaaneof his said daughter, who should then be
Irriog, in cijual *«harep, and should forthwith, be
tranaferred to ihtir joint names, and from
thenoefc rib be and remain for their jsint use
Aod Itent^t, and be at their sole and absolute
dijtpofal.
X The testator, the said John Parkin, further
direcfed by bis said will that the property so
bequeathed should ni>on the marriage or majority
of hia aaid daux^ter Jane Matthews sfter his
death be transferred to her in trust, and subject
lo all the provisions and conditions pf his said
4. The said John Parkin died on the 18th
October, 1856. leaving the said will of full force;
on the Bl8t December, I85S, the pro, erty herein-
before mentioned was duly transferred to the
said Jane Odatthews subject to the provisions of
the will ; and she continued to enjoy the rent,
profiti^, and use o' the said properties during the
term of her life.
5. The said Jane Matthews died on the 19th
September, 1896, leaving two children, namely,
the defendant and a daughter, Elizabeth Ann
i\f eyer (born Matthews), and also a grandchild,
whose father survived the said John Parkin but
died i>efore the said Jane Matthews. The defen-
dant is her executor testamentar}', and has duly
taken out letters of administration as such.
0. The I5tli Mtiy, I8S2, the estate of the defen-
dant was oompulsorily seqrestrated as insolvent
according to law, one William Arthur Ourrey
was elected and confirmed as trustee thereof.
7. The defendant thereafter notified in writ-
ing to his trustee the exislence, a» an as^et in
his estate, of his rights aforesaid under the will
of the said John Parkin, and the said trustee
proceeded to sell all the said rights by public
auction after advertisement in the ''Govern-
ment Gazette " and otherwise.
8. All the in0olveDt*6 said riglits, both present
and future, were purchased by ihe plaintiif
from the said trustee for the sum of £200, which
Fum was paid on the 24th April, 1883, and was
then-after distributed as an asset of the said
estate ; and the plaintitf received full and
formal cesniou iu writing from the trustee of
all the insolvent's interests under the said will.
!). The final liquidation and distiibution
account in the said estate was thereafter duly
confirmed, and the insolvent received hisrehabi-
litatiou on the 24th July, 1887; but there
remains a deficieucy in the said estate of
£4,700 or thereal'outs.
10. The sale of the rights aforenamed was
made with the full knowledge and consent of
the defeutlaot who both bef(»re and after his
(•aid rehabilitation acquiesced iu and acknow-
ledged the said sale.
11. The defendant now un wrongfully contends
th*^the is entitled to a full one-third share of
the property hereinbefore referred to, and that
the sale to the plaintiff as aforesaid was invalid
and of no legal effect.
12. The trustee aforesaid hfS notice of this
action and raises no objection to the claim of
the plaintiff to the said property.
The plaintiff claimed :
(o) An order declaring that he is entitled by
virtue of the premises to one-third share of the
property in the gad paragraph of the declaration
88
mentioned; and that the defendant is not
entitled thereto.
(b) An order compulliug the defendant to do
all things io his power necessary to enable the
plaintiff to obtain transfer of the said share in
the said property.
{e) Alternative relief.
(d) Costs of suit.
The followinfi: was the defendant's plea :
1. The defendant admits the allegations in
paragraphs 1, 3, 8, 4, 5, 6 and 9 of the declara-
tion, but for greater certainty begs to refei' this
Honourable Court to the terin^ ot the la^t w 11
of the late John Parkin.
2. As to paragraphs 7, S, 10 and 12, he con-
tends that tht) allegations therein set forth do
not constitute against him any caufe of action,
and further says a 4 follows :
3. He has no recollection and does not admit
that he notified to his trustee the e^iisteuce of
any rights under the will of John Parkin as an
asset of his, the defendant's insolvent < state,
but he admits that his trustee in May, 188B,
purported to sell and cede and the piaintilf
purported to buy and receive all his. the paid
trustee's, right, title, and intt rt-st to the expec-
tancy of the defendant under the will aforesaid,
and that the plaintiff paid to tlie said trustee,
for distribution in the said estate, tlie sum of
£200 as the price.
He annexes hereto, marked A, a copy of the
document whereby the trustee so pur, orted to
cede his, the said trustee's, right, title and
interest as aforesaid, upon which document the
plaintiff's claim is based.
4. He also admits that he had knowledge of
and did not in any wny object to the act^ of his
trustee as set forth in the premises, and says
that even after the death of his mother on the
19th day of September. 1896, and until recently,
he was under the erroneous imprcFsion that
plaintiff was legally entitled to his, the defen-
dant's, share in the property bequeathed to her
by John Parkin.
6. Save as aforetaid, he denies the allegations
in paragraphs 7, 8, and 10 of the declaration.
6. The trustee aforesaid of the defendant's
insolvent estate never at any time had in law,
under section 48 of Ordinance No. 6 of 1848, or
otherwise, any right, title, or interest in or to the
defendant's expectancy under the will of the
late John Parkin.
7. The defendant's mother was fiduciary
legatee of the property bequeathed to her as
aforesaid, and at no time before the confirmation
of the account and plan of distribution in his,
the defendant's, insolvent estate, nor at any time
before his mother's death, >yas any right veeted
}n the defendant,
8. The defendant's trustee in insolvency did
not in law by the aforesaid transaction sell aoy-
thing to the plaintiff, nor is the defendant bound
in law by the said tiansaction between the
plaintiff and his said trut^tee.
9. He admits that he makes the contention
alleged in paragraph II, but denies that he does
BO wrongfully.
10. As to paragraph 12, he craves leave to refer
this Honourable Court to such proof as the
plaintiff may adduce in relation thereto.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
11. As executor testamentary of his mother's
estate, and if the above plea l)e deemed in^ufii-
cient. but not otherwise, the defendant BKys
specially that, as fiduciary legatee, his mother
largely improved the property bequeathed to
her, and greatly enhanced its value by buildings
thereon and other improvements, and he con-
tends that the plaintiff has in no cape the right
to demand transfer of any share of the property
BO bequeathed until he shall have paid the
amount of compensation to which the estate of
his mother is entitled in respect of such im-
provements and enhanced value.
Wherefore he again prays that the plaintiff's
claim may be dismissed with costs.
The following was Annexure A referred to in
the foregoing plea :
I, the undersigned, in my capacity as sole
trustee in the insolvent estate of George
Frederick Matthews, son of Mrs. Jane
Matthews (born Parkin), do hereby cede, assign,
and make over unto and on behalf of Charles
Tennant Jones, of Port Elizabeth, his order,
heirs, executors, administrators, and assigns, all
my right, title, and interest to and in the
expectancy of the insolvent under the will
dated the 27th day of April, 1862, of his grand-
father, the late John Parkin, for valne
received.
Dated at Cape Town, this 1st day of M^y,
188H.
W. A. CURRKY,
Sole Trustee,
Ins. Est. G. F. Mat'hewB.
The replication was general as to the first
plea. As to the second plea, the plaintiff said
that improvements have been made upon the
property which have to a certain, though not to
a very large extent enhanced its value. He is
and has always been willing to pay compensa-
tion for the value of the said improvements
when transfer is passed to him, the amount to
be settled either by agreement or by arbitration,
or to allow defendant to remove them, but the
4efendant h^s wever demanded payment of any
r
8^
nm vkatwerer in respect of sueb improyements :
nbjaet te thiB he joins i&sue with defendant.
On these pleadings issue was joined.
Mr. Innes, Q.C. (with him Mr. Jones), for the
pjaistit.
Mr. Searle, Q.G. (with him Mr. Benjamin), for
the defendant.
For the plaintiff,
Cbsrles Tennant Jonee. M.Ij.A., said lie was
leqiuinted with the land in dispute, which ad-
joined land belonging to his wife. Witness
pnrehaaed the land in dispute from the trustee
is Uie insolvent's estate, one of his objects
bebg that he should have some
rights when the property came to be
out o£E. Witneas knew that if the
MD died before bis mothe^* he D.ight lose the
Isodat sny time. Witness had hired land from
Mn, Matthews for the term of her natural life,
iqioa whieh he had erected a kitchen and other
binldiiigs. Witneas was willing to pay a fair
vtiue for improYements. Witness paid £21)0 for
tk ihiieof the insolvent, and had had no value
whatever. On July 7, 1896, shortly before the
death of Mrs. Matthews, witness received a
letter from the defendant, asking if witness was
villiAg to sell back his inheritance. Witness
wrote in reply, saying the share had gone up
OQHiderably in value. He was prepared to sell
the share, which was a third, at a reasonable
priee, if defendant could have found the money.
The estate was now worth about £3,0C0.
Croe»>examined : Some time ago, when there
were five heirs, he valued the property at
UfiCQ, and would have taken £3J0. Since,
bowever, two of the heirs had died, and the
property had largely increased in value.
For the defence,
Qeoige Frederick Matthews, of Port Klizabetb.
the defendant, said when he became insolvent in
Ctpe Town, in May, 1882, he was a builder.
Witoeas did not remember notifying to the
tnuteein his insolvency his rights under the
will The Bank of Africa were the princlDal
crBdit(»B. Witness mentioned the inheritance
to the manager of the bank. Witness's idea was
that Mr. Jones had only bought one-fifth share of
the estate The value of the improvements made
is the various properties was about £1,000.
Cross-examined: At the time of the sale
witoesB thought it was quite fair to sell what
ns then a one-fi Cth share. It was only recently,
ifter taking advice, that he disputed the owner-
chip of the present one-third share of the
state.
This closed the evidence.
Mr. Innes, Q.G., for the plaintUf : The ques-
tion is does the law give the trustee the right
todiq)08e of the defendant's interest under the
N
will, for if not, this transaction is invalid as
against the insolvent. Now there are two facts
to be noted especially :
1. The will limits the children who are to
obtain benefits to those who survive the
testatrix.
2. The wUl directs that the absolute domimum
of the property should Iw transferred. In view
of this we must admit that this is a case of
fidei'eofnmit9i(my i,e„ Mrs. Matthews was
fiduciary heir, and after her death such of her
children as survived her shouM get benefits
after her. The case of Quin v. Baartman
(Buchanan, 1870, page 78) is important, and that
case must now be finally maintained or over*
ruled. If maintained it conclusively governs
this case. Can a fidei-commissary heir have
anjrthing to sell to a bana^jide purchaser for
value? Qtiin'sease has been criticised in two
ways:
(a) Either (because there is such a meagro
report of the case) that it is possible that the
Court may have held that though *' fidei-
commissary" words were used, yet it might
have been a case of usufruct in view of the
general provisions of the will, otherwise it is
difficult to reconcile that case with the authority
of Voet.
(b) Or, again, that the judgment depends
on the words of the losolveut Ordinance
(section 48) and not upon the strict common
law rights of Jidei-oommissiifn or usufruct. A
case criticising (^uius CA$e i» Nortje v. NoHje
(6 Juta, 9); see ai^o iStrydoin v. Strydom
(11 Juta. 425); /» re Zipp (Buch. 1878, p. 182) ;
De Oecit'i i^xecutm' v. Be Geest's Erecator
(4 Juta, 95). The remarks in these cases
regaiHiiog Quins case are certainly obiter dictas
but show that tne decision has been much
questioned. The 46th section of the Insolvent
Ordinance vests all the insolvent's rights first in
the Master, and then the 48th section vests them
in the trustee, though the words In the two
sections are not the same. "Wherever the
same is known or found," which occur in section
46, not being inserted in section 48, neither are
the words "nor as to which any right of
reversion shall then be vested in him." These
are not found in section 49 of Ordinance 64.
Why were they added ? Surely to show that
these rights are taken away from the insolvent
and vested in the trustee. A man during the
lifetime of the testator cannot sell his inheri-
tance under a will. But Voet and others hold
that a fpet may be sold^this is a « «» , and the
right has a certain tangibility about it. For
Hiddlngh v. Roubaix (Buch. 77. p. d6),
shows that the fidei-comminsary heirs may
prove in the insolvent estate of the fiduciary,
I
§0
and the anoinaloae poeition would uiae that
though their rights are so provahle they
cannot be sold if the trustee has no right.
This is not in the nature of a gambling
transaction; and the right can be lawfully
sold. E(B parte Burger (4 Shell, 106). The
right of fidei'^ommiuwrn cannot descend to
heirs, but yet it vests in a way and can be
proved. Is it not anomalous that it can not be
sold 7 It is not contingent in the sense that it
depends on the caprice of anybody, but it
simply depends on the natural course of events
and must fructify. Lange v. Liesching (Foord,
p. 65). Surely it was rights in the nature of the
Mpes mecestionu that the Legislature con-
templated in section 48.
Mr. Searle, Q.O., for the defend %nt: The
ordinary meaning of *' right of reversion vested
in him '* i- as, e.g.<, where a man has sold all the
life interest to another, he retaining the nmia
proprietoi. But it cannot refer to a contingent
claim such as this. As to proving a contingent
claim see Copeetahe v. Alewander (2 Juta, 187),
but there is not a word in the whole Ordinance
to provide for a contingent asset. The case of
Van Breda v. Master (7 Juta, 860) is very much
in our favour. In Quin v. Baartman the Court
must have lield from the whole tenour of the
will that though the term usufruct was used
yet that it was really a /idei-oemmissum.
Board Y. TUterton (IS 8.0. R., 164), the trustee
sold all his rights as trustee not the insolvent's
rights. Ras's I^stees v. Be Klerok's Exeotttor
(7 Juta, 118) lays down the law as to the pur-
chase of an inheritance. This is a pure fidei-
eommAssHmt there is no vesting— such rights as
chances and spes do not vest in the trustees.
atrydom v. Strgdom's TruH*es (11 Juta, 433).
What Mr. Jones actually bought was the
chance that something might be vested in the
insolvent before the confirmation of account.
The Ohief Justice: But how about the
acqmescence of the insolvent 7 At least so far
as the one-fifth is concerned.
Mr. Searle : But how can the insolvent be
estopped by anything that he has done? Mr.
Jones has suffered no prejudice nor was he
misled by the insolvent, nor did he buy any-
thing vested in the insolvent but in the trustee.
The chance was that the old lady might die
before the account was confirmed.
The Chief Justice; Can the trustee acquire
any rights which are not transmissible to heirs 7
Mr. Innes : See Be Geest*s Case (4 Juta, 96),
and the Chief Justice's remarks on page 96) ;
Qum V. Baartman, and section 49 of the Insol-
vent Ordinance. All these seem to show that
the trustee can. Qtiin's ewe was one of a fidei-
commissnm, Breda^t was not, and can thus be
reconciled. A fidei-commissary has rights whieh
a bondholder never has. Matthews certaialy
had no rights which he could transmit to helim.
CJL,V.
Pestea (Wih February).
De Yilliers, C.J.: The plaintiff parohMod
from the trustee of the defendant's estate **tlie
right, title, and interest of the insolvent to and
in the ezpectency of the ins<rfvent under the
will of John Parkin, dated the 27th of April,
1962." Quite independently of the use of the
term ** expectancy'* the plaintiff's counsel luui
candidly admitted that the will created a fidH^
eommissum, and that the legacy to the defendant
was intended to be conditional upon his
surviving his mother, who was the fldnciaty
legatee. In the absence, therefore, of indloA*
tions to the contrary in the will, the testator
must be held to have intended that the legaiey
should not vest until the condition has been
fulfilled, or in other words, until the death of
the mother during the defendant's lifetime.
Such is the dear effect of the decisions of this
Court in Van Breda v. Master (7 Juta, SeOX and
if a different conclusion is to be deduced from
the dectfion in QuUi v. BaartmtM then it nmat
once for all be said that the latter case can no
longer be supported. The Court has, howerrer,
on more than one occasion pointed out that the
case of Q^dn v. Baartman was very briefly
reported, and that the grounds of the judgment
are somewhat obscure. The defendant has
survived his mother, but before her death tha
account of his estate had been confirmed. He
therefore, under the 126th section of the
Insolvent Ordinance, was entitled to the land an
being property which ** reverted, descended or
was devised to him in mauner other than by
virtue of a right of reversion which was vested
in him at the date of the sequestratton of hia
estate." In the case of Qnin v. Baartman aa
well as in the present case, the English law waa
relied upon as supporting the contention that
the insolvent's contingent interests are iraiia*
mitted to the trustee of his estate, but the
language of the 48th section of our own Ordin-
ance is very different from that of the Acta
which establish the rule in Bngland. It is said
by Robson (on Bankruptcy, 7th B.D., p. 479)
that "all contingent and executory estates and
interests to which the bankrupt is entitled will
vest in his trustee," and in support of this view
he cites Bigden v. WUliamson (6 P.W.. 183):
There it was certainly held that a contingent
interest or possibility in a bankrupt is assign*
able by the commissioners, and the reatons are
thus stated by Lord Chancellor King, ''partly
because the bankrupt himself might hare
departed with this contingent interest ; also for
II
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91
ami .... the word pauiHlity is in aU
the later Btatatee touching bankmptey." In
6 Oeu. 11^ a, 80^ the words are '*all buoh
effechi of which tiie party wan poeseiMd or
interested in, cr whereby be bath, or may
expect nay profit^ posBibility of profit, benefit
er adrnBtnge whatsoever." Unfortanately for
the piniBtJIE our law has not spread the net
widf enongh to embrace contingent interests
•■eh as that which is now in question, and the
judgment of the Court must be for the defen-
d«ii with oostSL
Mr. Justice Buchanan: The rights sold by
the ^ trustee to the plaintiff were those conferred
upon the trustee by the iBth section of the
laeolTcnt Ordinance, and these again were
what were transferred from the insolvent to the
ir by the 46th section. These sections
that the cfEsct in law of sequestration
shall be to ** divest" the insolvent and to
"viset" in the Master, and subsequently in the
traslee, the insolvent's present and future
''estate." Thew provisions, I think, require
timt there must be an estate vested at the time
el ssquestration. The following words of the
48th section seem to me to confirm this view,
for they further confer upon the trustee any
ri^t of reversion then veiied in the Insolvent.
8o much as to present property. As to future
property the section goes on to give the trustee
a title to any property which after the date of
ssquestration and before the confirmation of
the aeeooBt and plan of distribution, may be
purrhased or acquired by the insolvent, or may
revert, do ece nd , or be devised or come to him.
This does not include a mere jpM
MSMSHMiJs .... or contingency not
darinfr that time vested in the insolvents
After the confirmation of the liquidation
aeeonnt the insolvent acquires property for
Umself, Bubjeot of course to the liability of
eiceotieD, until his rehiabilitation is obtained.
In this case it is admitted that the insolvent
had no vested interest at the date of sequestra-
tioB, and that the property did not accrue until
ksHT After hoth the confinnati<m of the account
tad the insolvent's rehabilitation. All the
dseiiions of this Court, with, it is extended,
ths eiception of the case of Quin v. Baartman,
bave clearly been based on the fact that vesting
bad taken place at the date of sequestration.
As to the case of Qwiu v. Baarimaai, the report
ihows that the arguments of counsel in that
esse were directed mainly, if not entirely, to
the question of vesting, and that the judgment
ta founded on that issue being affirmatively
deeided. It is possible that the uncertain terms
et the will in that case raise a doubt whether or
lotafafsetareptin^ bad taken place, and it
is that doubt which I think has created the
difficulty which has been felt in reconciling
that dedsion with the more recent judgments.
Whether or not it was a sound deduction to
draw from the will in that case, that there had
been a vesting, it is useless now to discuss.
Judging from the report that was the deduc-
tion actually drawn by the Court, and having
thus found on that issue, it followed as a matter
of course that the property in question had
passed to the trustee. If that is the correct
ground of the decision, then Quin v. Baartnian
falls into line with all the subeequent cases, and
there is no decision on record to the effect that
a merely contingent and unvested interest
paeses by operation of law under the 48th
section to the trustee. This judgment now
definitely setUes that it does not. The provi-
sions of the old Ordinance No. 64 were more
against the insolvent than is the present law.
His lordship the Chief Justice ba^ shown that
the words of the old Bnglish statutes were much
wider than those used in our Ordinance. Since
the adjournment I hsve referred to the discus-
sion on the 48th scotioii in the old Legislative
Council at the time of the alteration of our law,
audi find it was expressly intended to make
our law more restricted in operation than was
the Bogliah law at the time. I concur in judg-
ment being given for the defendant with costs.
Mr. Justice Maasdorp concurred.
[Plaintiff's Attorneys, Messrs. Scanlen 8l
Syfret ; Defendant's Attraneys, Messrs. Van Zyl
k Buiesinn^. |
eBBBH A»D BBnrroN y. duraan
ASD AVOTHEB.
)
1897.
Feb. 26th.
Contract — Breach — Damages — Tender.
This was an action brought by Messrs. Qreen
k Brinton against Messrs. W. k D. Duraan to
recover the sum of £280 as damages for breach
of contract.
The plaintiffs' declaration alleged :
1. The plain tiifs carry on a general business
together in partnerehip at the Draai Vlei, in
the district of Prieska, under the style or
firm of Green k Brinton; the defendants
are farmers, and both reside at Kommandant's
Kraal, in the district of Britstown.
2. On or about November 80, 1896, a contract
of purchase and sale was entered into between
the plaintiffs of the one part and the defen-
dants of the other part. In terms of the said
contract the defendants sold to the plaintiffs,
who purchased from them, a quantity of chaff,
estimated by the parties to be about 100 bales.
The purehase price agreed upon for the said
i
92
chaff W8B 10b. 6d. per bale of 800 lb. weight, de-
livered on defendants* farm, but the eaid defen-
dants were to have the option of delivering the
said chaif at the plaintiffn' farm, in which case
they were to be entitled to 1r. 6d. per bale
additional.
3. Thereafter the plaintiffs were ready and
willing to perform their part ot the said con-
tract, and on or about the 8th December they
applied at defendants' farm for the delivery of
the said chaff, and were prepared and offered (o
pay the purchase price as agreed for the same.
4. The defendants wrongfully refused to carry
out their part of the said contract, they declined
to make delivery of the snid chaff, and they
repudiated the said contract.
6. By reason of the defendants' breach of con-
tract as aforesaid, the plaintiffs have suffered
damages in the sum of £2S0.
The plaintiffs claim from the defendants and
each of them : (a) Payment of the sum of £290
for damages as aforesaid ; (b) alternative
relief; (0) costs of suit.
The defendants in their plea alleged :
1. They admit the allegations in the first
paragraph of the declaration, but save as is
hereinafter pet forth, deny those in paragraphs
2, 3, 4, 5.
2. On or about October 28, 1890, and at Kom-
mandant's Kraal, it was agreed between
defendants and one Devenish, acting for and on
behalf of plaintiffs, that defendants should sell
to plaintiffs at lOs. 6d. per bale as much chaff
(not exceeding ICO bales) as defendants should
have left over after filling their own storehouses,
the plaintiffs to supply bags therefor at Kom-
mandant's Kraal as soon as defendants had
finished threshing.
3. Thereafter, on or about November 90,
defendants gave notice to plaintiffs that the
said chaff was lying ready for plaintiffs, and
that the bags must be delivered at Kom-
mand ant's Kraal on or before Decem))er 4, and
plaintiffs (hereupon supplied two bags, which
defendants filled with chaff for plaintiffs.
4. The plaintifib did not deliver the remainder
of the bags by December 4, and thereafter the
defendant David Duraan, being at Britstown
on December 6, agreed with the plaintiffs that
the time within which the said bags should be
delivered should be further extended ; in ignor-
ance of the above arrangement, the defendant
William Duraan, at Kommandant's Kraal, on
December 6, sold the said chaff (except the said
two bales), to wit forty bales, to one Le Roux at
£1 per bale.
5. The defendants are willing, and have ten-
dered, in order to avoid litigation, to pay to the
plaintiffs the sum of £40 as damages and costs
to date ; or, in the alternative, to detiver foitf -
two bales of chaff to plaintiffs at Kommandaiil'a
Kraal, and to pay £10 aa damages with coata to
date, the plaintiffs to pay for the said chaff at
the rate of 10s. 6d. per hale, the defendants
repeat the said tender.
Wherefore subject to the above tender tiie
defendants pray that the plaintiffs' claim be
dismissed with coats.
The plaintiffs' replication admitted the ten-
der, but was otherwise general.
On these pleadings issue was joined.
Mr. Rose-Innes, Q.C. (with him Mr.
McGregor), for the plaintiffs.
Mr. Searle, Q.C. (with him Mr. Rooe), for the
defendants.
For the plaintiffs were called :
John N. Green said he was a partner In the
plaintiff firm, who carried on the bnsinesa of
hotelkeepers and genera) dealers at Dmai Viet
farm in the Prieeka district. Towards the end
of December plaintiffs ran short of chaff, nad
sent to defendants a man in their employ
named Devenish, to purchase chaff froni
the defendants, and defendants promleed
to supply the chaff at lOs. 6d. per bale.
Defendants were pressed for a time to be named
when the chaff could be delivered, when th^
said they would write to say when the first two
wagon loads would be delivered. There would
be twenty -two bales in a load. This was said
on November 1, but the promise to write was
not kept. Devenish was afterwards sent over
to defendants' farm about the chaff. Chaff was
much required by witness in oonseqnenoe of tho
rinderpest bringing abont an increased numher
of passengers. On the night of Novmnber 1 Mr.
David Dnraan eame to witness's house and said
plaintiffs should have at least 100 balsa, and pvo-
bablyl20to 130, at any rate witnesa's firm
should have all above what waa required for da-
fendants' own use. After supper defendant
asked about bags. Witness said he waa aony,
but they had no bags. Defendant then told
witness he was unable to obtain any. Deveniak
then said, *' Mr. Durann, you told me that you
had forty bags." Defendant then said that tha
forty bags were owing to him, but he had beoa
disappointed in getting them. Witness then
said he expected 100 bags of wool by mula-
wagon, and he would let defendant have fifty-
empty bags, but could spare no more. Defend-
ant said, *' You must send them as soon aa yoa
can," and witness promised to do so. Theba^
were afterwards sent to defendant, and th^ were
afterwards returned empty by defendants with a
letter regretting that they could not let plaintiff^
have the chaff. At that time witness did not
know that defendants had sold the chaff to Roost
'II
III
>■
V
»
e
t
t!
1
n
■
d&
fcillibtie. A^t«rw&r<U the mstter waa put
U»teteDdsat mn agrent^ «nd a letter of demand
wfiiUen. He limd fltl^Pr»yB bought chaiE from
hoMn'mbftf;*, itnci afterwards returned the
biPk hi oo&aeciiiei&oe of the breach of con-
nd, pluntliEB were left with absolutely no
4dL Pltintitta had to telegraph all round for
ckff. Wltaen oould obtain no chaff in the
Mttj. UHSmatelT 100 bales were bought
ftia Mr. John I>eveiiiflh at Stellenbosch,
wUdi eoBt, delivered at plaintiffs* place,
ttlli.8d.a bale. The ooet of thechafE, if
dittfered by defendanta, would have been
Ul<d.abaie. In December plaintiffs got from
0feL to M a bale. The increase in price was
bMaoK ot doTemment being large purchaeers,
of traTellers, and drought.
Defendant did say the
lyhiS on the tramp floor, and might
ifMltbeiebe damaged by weather. He did
■il try at Hont Kraal for chaff. He had
balea weigh 870 lb. ; the weights raried.
eand got into the chaff.
Bereaiab, of Bteilenboaoh, farmer, said
farmed at one time in the Prieslia dis-
about eighteen miles from defendants*
He knew defendants' farm well. He
eaftd -^lalntifb* obafE of 900 lb. to the hale at
tSi^ a b^e. He bad to pay 8s. for carriage of
IWk lb. of meal from De Aar to Omdraai Vlei.
Aj^astas B. Devenish said he was in the em-
of plaintlfls as clerk. He corroborated
the witaeea Oreen had said as to his risit
to boy chaff. He saw the senior
who offered to sell chaff at 12b. a
Witnaaa offered 10s., and eventnalir the
of ICa Cd. per bale was fixed. Defendant
wttnaas what quantity he woyld take, and
he ooold supply 190 to IfiO bales, but
psomiaed to supply 100 bales. This
oa the 96th Oetober, and defendant pro-
to write on the following Wedneeday.
Flahitiif again went over, when defendant said
would be delay as the wind prerented them
_ on wHh tramping. In answer to def end-
t'a reqoeat lar bags, witness said they would
be able to send some.
Croaa-ezamined : Defendant said he must be
helped with bags, and witness said he expected
about Saturday, when they would be sent
to defendants. There was rain and wind
U the time, and the chaff was lying in
/
▼an der Merwe said he was postmaster
a* Omdraais Viet. Witness went with Mr.
Dereolah to defendants' farm just for a trip
iato the country. He heard defendants talking
to the last witness. Mr. David Duraan offered
$a ael| aome ^haiC, and said he expected a very
good crop that year, and all orer what he would
require himself he would sell to plaintitb. He
said he would guarantee from fifty to 100 bagi^.
Witness was abo present at the hotel when Mr.
David Duraan said he would be able to supply
from 120 to ISO bags of chaff. Witness was.
certain that Mr. Willem Duraan said he had
forty bags.
This closed the plaintiffs' ease.
For the defence,
Willem Duraan, one of the defendants, said
he remembered Mr. Devenish coming to his-
farm about the S8th October latt. Chaff wta
mentioned, Mr. Devenish aaking if witness would
have some chaff to ppare. Witness replied yes, if
there was nodamage to his crops. Witness effefad
the chaff at 12s. if plaintifb would supply bag*.
Derenish offered 10s. 6d., and this was accepted,
plaintiffs to supply the bage. Witness had net
a single bag. Witness generally sold chaff on
the terms that purchasers supplied bags.
Devenish saw the chaff houses. Witness had
never yet weighed a bale of chaff. He said
nothing to Devenish as to weight, witness
liad never sold by weight. Witness afterwards
saw Devenish when the chaff hou»e was nearly
full, and told him he wouid send
the chaff over on receipt of the
bags. There was a fearful wind on.
Plaintiffs did not send bags, and the chaff wss
lying on the tramp floor. Two bags were sent
by plaintifEs and were filled by witness; but
they conld not be sent as the donkey in plaintiffs
cart was not able to take them. Witness after-
wards sold forty bales of the chaff at £1 to one
Le Boux, who brought bags. The chaff was
waiting for a week on the floor, and he
though about thirty bales were wasted. There
was rain and heavy winds about this time.
By the Court: Witness did not send a mes-
sage to plaintiffs, as lie had sent no bags.
Examination continoed: Witness expected
the bags on the Friday. He thought the bags
were not coming, so he Eold the chaff.
Cross-examined: Witness finished the last
tramp on December 4. He had never measured
his chaff house, bnt he thought it would hold
forty bales. When he sold to Devenish he ex-
pected to get about 100 bales. Le Boux had
been to buy chaff on December 2 ; the sale was
effected on Saturday, December 5.
Re-examined : It rained all night on De-
cember 2, and there was a fearful wind. Wit*
ness lost about thirty bales of chaff. Witnesf>
had never supplied bags in his sales.
David Duraan, the other defendant, son of
the last witness, corroborated the evideaea
given by his father. The weight of balea varied ^
94
•ometlmef a bale woold w«igh ooly 2801b.
Tbeir oiiaff WM DOt sMidy ohaff. DefeodantB
bad mo tags on the farm.
O roM axaminad : They flniahed tramping on
Baoember 4. They began in November. They
oontinaed tramping almost every day.
F. A. Venter, who resided near the farm of
defendants at Beer Vlei, said he had purohaeed
ebafl between the 10th and 20th November in
that district at lis. On the 10th December he
booght ten bales at 10b. He had bought this
■MNithatlSs. Ohaff was always sold by the
bttla at Beer YleL About 240 lb. was the
average weight of a bale at Beer VleL
B. A. Stsytler, farmer, in the Philip's Town
district, who had a store about forty-eight miles
from defendants* farm, laid he used to purchase
chaff from Beer Ylei The usual weight of a
bale was 260 lb. average. He bought chaff last
December tem 9s. to ISk a bale. He bought
UK) bales. Witness was now selling at 16s. a
Jacobus Duraan, eldest son of the defendant,
said his chaff was sold partly to Le Boux, who
paid M a bag. That was in the beginning of
December, about tlie same time his father's
ohaff was sold. Another part— forty bags— was
sold to Lillienfeld & Wright at ISk 6d. to 16s.
This was about twenty days before. He knew
of no sales of chaff above £1. The average
weightof a bale was about 280 lb.
James Higgo, farmer. Beer Yley, said he had
bought chaff in December in the district for
10s. 6d. a bale.
Petrus le Boux, farmer in the division ot
Prieska, laid he went to defendants' farm on
November 2 to buy chaff. He afterwards
bought forty bags of chaff from the defendants
at £1, supplying twenty-three of the bags him-
sell He made about 6s. a bag profit. The
average weight of a bag was about 280 lb.
This closed the evidence.
Mr. J. Bose-Innes, Q.O., was heard for the
plaintiffs.
Mr. Searle was not called upon.
Judgment was given for plaintiffs tcff £4 J, the
amount tendered, and costs up to date of
tender.
The Ohief Justice : In this case the plaintiff
sues upon a contract which is of a most vague
description. It is a contract for the purdhase of
so much of defendant's crop of ohaff, as he did
not require for his own use. Such a contract
places the puroluwer entirely at the mercy of
tlM seller, and if a person does enter into a con-
tract of this vague description he cannot expect
when lie comes into court to recover damages
upen the basis of the claim in the present case. I
K|m by no msaiis satisfied tl^at if f here had been
no tender at all plaintiffs would have susNMeded
in the action. Buppose defendant had re-
quired the whole quantity for his own uss I do
not think plaintiff could have recovered. How-
ever, this is not the point to be decided now see-
ing that the defendant pleads liability to the ex-
tent of 440, and the only question is whether the
amount tendered is sufficient. The plaintiff has
produced an elaborate calculation from which
he would seem to show that the actual cost of
ohaff to him similar to that which he purchased
from the defendant was A2 lis. 8d. per bale.
This however is based upon the supposition that
the defendant was bound to deliver to the plain*
tiff bales weighing 801 lb. eaoh, but I am per-
fectly satisfied from the evidence that if the
defendant had tendered bales a sighing only 230
lb. eaoh thfy would not have been refused by
the plaintifC. Assuming even that the calcula-
tion is right the question is would the plaintiff
be justified in going into the Stellanbosoh
market, and there buying ohaff whioh would
oost him m lis. 8d. if within the immediate
neighbourhood he could have got it much
oheaper. From the evidence I am satisfied that
he could have, at all events, bou^
in the neighbourhood at the price of
4118f.6d. Mr.LcBouxgotthechaffatAl. The
tender of £40 is on the basis that the plaintiff
would have made a profit of about 2u0 per cent
and it is not shown that he has sustained mors
than £40 damages. Plaintiff may have shown
that he has made bigger profits, bat then he
sold in driblets, in which case questiiMM ol
other expenses entailed would come in. Mr. Le
Boux only made 6s. a bale profit Thedafimdaat
makes a tender of £1 per bale, which, I think,
is fair and reasonable. There will, thaiafna,
be judgment ton tJie plaintiff in terms of the
tender, with costs np to the date of tender, all
costs subsequent to that to be paid by the plain-
tiff.
Their lordships concurred.
[Plaintiffs' Attorneys, Messrs. Tan Zyl ic
Buissinn6; Defendants' Attccney, P. de
Yilliers.]
1
i
It
i
t
96
SUPREME COURT.
Bigbt Hon. Sir J. H. ms YiLLtflRS,
.1C.Q. (Chief Jmtioe), Hon. Mr.
Utobahak, and Hon. Mr. Juitice
PBOVIBIOHAIi BOLL.
feAM ▼.
r i8i»7.
IFeb. 27th.
Mr. MdieBo Applied for proTisioiud sentence
en £S0 intexeii due on n mortgage bond lor
OJOOOi, nt the rmte of 6 per eent^ from let July
lo SM December, 18M.
JUBIBK T. WnOBK.
I mi^ed for prorieionftl sentence
ptemiflMry note for £70 ISsn lees £8 paid
Hr.CMtene
ILUQUID BOLL.
OOOnCIL OF GAPS TOWH V. MUBI80N.
Mr. Cloee applied for judgment under Bute 829
id} for 448 Ifie^ leM £10 paid on account, and for
BiaCH A3XD CX>. V. DK YILLIBBa.
Mr. Tredgold applied under Rule 829 (iQ fw
iadgment for £18 li. id., being ooete incurred in
an aetlon mi law.
Graatod.
J. woiwamrs and go, v. a. mat Aia> oo.
Mr. Clooe applied for judgment under Bule
(£) for the sum of £2 7b. 6d^ balance of a
debt of £66 Ite. lid.
Orvnted.
▼AH DBB BTL AlTD 00. ▼. LCCKS.
Mr. Boot applied for judgment under Rule
id) for £88 te. 8d., being the amount of a
which the defendant undertook to
Chanted
ADMUnOH.
Mr. Macgr^gor applied for the admiieion of
Mr. Xnest Huret Ashpitel as attorney and
The Court granted the application, the oath to
fee taken at Kimberl67 hefore the Registrar of
tttHIgh Court.
OBNBBAL MOTIONS.
SCHAAP AND OTHBB8 V. BOLOMOir.
Mr. Maqgregor applied for the award in this
matter to be made a rule of Court
The Court granted the applicatton.
nr THB MAI TBS OF THB PBTITIOH OF BMIlJi
HENBT VAN HOOBDBN.
Mr. Tredgold applied for authority to the
Begistrarof Deeds to issue a certified copy of a
moitgagebood dated February 29, 1898, passed
by John GkKxiison in ftiYour of the said Bmile
Henry van Koordeo, the original bond having
been lost.
The Court granted the application.
IN THB MATTBB OF BOSINA BLIZABini
MULLBB.
Mr. Tredgold applied for the appointment of
a curator ad Utem in proceedings to have her
declared of unsound mind.
The Court granted the application, the summons
to be served on the alleged lunatic a^ well as
the curator, returnable at the Circuit Court,
Mossel Bay. The brother, Mr. John Alwyn
Mulier, was appointed ctirator ad litem.
IN THE MATTBB OF THB MINOB JUDD.
Mr. Buchanan applied for authority to
the Master to pay out of the amount to
the credit of the minor Fanny Judd a sum
of £16 per quarter for eight consecutive
quarters, to be applied towards her maintenance
and education at the educational institution at
Worcester known as the Huguenot Seminary.
The Court granted the application.
IN THB MATTBB OF THB UNION BOATINO OOM*
PANY IN LIQUIDATION.
Mr. J. Bose-Innes, Q.C., presented the formal
report of the liquidators on this company and
the Port Eliiabeth Boating Company becoming
amalgamated.
The Court received the report No order
granted.
IN THB MATTBB OF THB POBT BIJZABBTH
BOATING COMPANY IN LIQUIDATION.
Mr. J. Bose-Innes presented the formal
report of the liquidators on this company and
the Union Boating Company becoming ama1ga«
mated.
The Court received the report No order
granted.
96
IN THB MATrm OF THB MDfOBS OOC.
Mr. Macgregor applied for authority to the
Gliief Magiatiate of Bast Griqaaland to pay
QDt: (l)Thati]iii of £5 out of the moneys to
the credit of the minora for their immediate
maintenance; (2) the sum of Al lOs. per month
for their maintenance and education.
The Court granted the application.
IK THE MATTEB OF THE MINoB DOLL.
Mr. Buchanan applied for authority to
the Master to pay out of the money to
the credit of the minor sufficient to pay for the
carrying out of certain drainage works amount-
ing to £44, and also to defray the cost of taking
out letters of confirmation to the tutor dative
and of this application.
The Court granted the application.
BAILEY v. BAILET.
Mr. Close appeared for the plaintiif. De-
fendant in default.
This was an action for divorce instituted by
the wife against her husband. The parties
were married at S. Mary's Church in Port Eliza-
beth on July 31, 1878. There were two children
of the marriage. The custody of the children
was asked.
James Lord, dock labourer, said he knew the
plaintiff and defendant very well indeed. He
identified the plaintifE. He knew a woman
named Anna Henry, with whom defendant was
now living. The woman bad had children since
she had lived with the defendant.
Laura Bailey, the plaintiff, said they had no
property on their marriage. The children were
reepeetively seventeen and sixteen years of age.
Witness wished to have the custody of them.
The Court granted a decree of divorce as
prayed, with custody of the children, defendant
to piV coats,
[Plaintiff's Attorney, D. Tennant, jun.]
KOOHAN V. MOOKAJff.
Mr. Graham for plaintiff. Defendant in
defanltw
Tfaia was an action for divorce instituted by
the husband on the ground of the wife's adul-
tery. There was one child of the marriage.
Befl^aldD. H. Barry, clerk in charge of the
marriage register, proved the marriage.
Robert Philip Noonan, the plaintiff, said he
was a sign writer. Until recently he resided at
Johannesburg. He was married te Elizabeth
Koonan in 1891. They afterwards resided at
Cape Town and Mowbray until about October
three years afterwards when witness went to
Johannesburg. He left his wife with her mother
in Mowbray. They had lived moderately hap-
pily. Witness supplied his wife with sufficiani
money for her support. There waaoDoefedM
Kathleen, four and a half yean of age. His
wife joined him on the 15tb December, £696,
and stayed with him two and a half mimths.
Then she returned to Mowbray. Witness after-
wards came back to Mowbmyi And found that
his wife was pregnant His wife left him the
beginning of March, 1896, and became down in
ApriL A child waa ubaequenitly bom in
August. His wife subsequently told him the
child was that of Thomas Lindenbaum
Thomas Liudenbaum, cart driver, identllied
the photo produced. He knew the lady in Decem-
ber, 1895, and had had improper intercourse with
her. He had given her certain amounts of
money. Witness did* not know the husband at
the time.
The Court granted decree of divorce, plaintiff
to have the custody of the child, defendant to be
delared to have forfeited all benefits under the
community.
STUBK AMD CO. V. DIETKELE.
Mr. J. Bosc'Innes, Q.C.,appearedfDrtheap|)ll*
cant; Mr. Searle, Q.C., for the reepondeni.
This was an application on behalf of tha de^
f endant far leave to file an amended plea i»
this pending suit.
The Court declined to grant the order, the
queeUon of costs to stand over.
IN THE ESTATE OF THB LATE KIOHOLAS W.
Mr. McLaohlan applied for leave to the ex-
ecutors to apply AlOO out of money adminiaterad
by the General Estate and Orphan Chamber in
the repair of certain buildings at Salt River.
The Court granted the application on the con-
dition suggested by the Master, that aooofnnts
should be rendered to him.
IV THE MAZTBB^ OF THB FE11S90II OP 'LOUflBL
PETBOMSUJL SHOOK.
Mr. UM/ogngOT applied for leai« to aigii pw mm f
of attorney to pass transfer of landed property
without the assistance of her husband.
The Court granted the application.
IK THE ESTATE OF THE LATE JOHN HOBKHTS.
Mr. Jones applied for leave to mortgafis
certain cottages to pay for drainage expensee.
The Court granted the application; the
property to be mortgaged for such sum aa th0
Master may direct.
&?
D THK MATXKR OV THB VINOB PENH.
Mr. Benjamin applied for the Court's
metioB to mXe of erf at Molteno.
The Court grsated tlie application.
SUPREME COURT.
IBetoRibe Right Hon. Sir J. U. DE Villikrs,
?.C^ K.C.M.G. (Chief Justice), Hon. Mr.
Jwtke BucuANAK, and Hon. Mr. Justice
Maasdohp.I
YiLJoss; y. vii«roBN.
f 1897.
I March Ut.
Mr. Kacgregor appeared for the plaintiff, and
defendant was in default.
Ihis was an action for the restitution of oon-
jogal rights institated by the husband, a farmer
at Carnarvon. The parties were
riedon the 90th July, 189^, at Garnaryon,
witfaflut community of property. In May, 1896,
the defendant left the plaintiif and went to
Johannesborg, and refused to return to the
JBdpnjild D. H. Barry, clerk in cbaive of the
register at the Colonial Office, proved
liioolaas Johannes Stephanus Viljoen, the
now residing in the district of Victoria
he signed the register of marriage
The marriage took place on July SO.
XIh^ were married at Carnarvon. On
18, 1891, his wife told him they had
separate. She said she had married him
her wilL Witness was not willing
to a separation. Subsequently
was eo much unpleasantness that plaintiff
at avray. Witness saw his wife again on his
when she asked him what he had come
beck for. Witness replied that he came back
to try to make up the quarrel, when defendant
weat into her room and locked the door, and
to have anything to do with witness,
had not seen his wife since.
The Ckrart granted a decree for the restitution
of eoajngal rights, defendant to retnrn to her
oo or before March 81, failing which a
nisi to issue calling on defendant to show
why a decree of divorce should not be
lPl3iniUr§ Attorney, V. A. van der Byl.]
O
( 1897.
VAJf DBK HBEVEB V. DU TOIT. s March let
I ,« 6th
Trcspfies — Danvnjes — Volenti iiou fit
injuria.
ThiH was an action to compel the removal of
a certain fence erected on the plaintiff's farm
by the defendant, and to compel the erection by
him of another fence, and for damages for tree*
pass.
Mr. J. Rose-Innes, Q.C. (with him Mr.
Buchanan), for the plaintiff.
Mr. Searle, Q C. (with him Mr. Casten**), for
the defendant
Plaintiff's declaration was as follows:
1. The plaintiff resides at the farm Sliugcrs-
hoek, and the defendant at the farm Matjies-
fontein, both situated in the district of Hanover
and the parties are the duly registered owners
the said farms respectively.
2. The farm Slingershoek adjoins Matjics-
fontein, and the plaintiff annexes hereto a
rough sketch showing the boundary line betw een
the two farms, which line is indicated by letters
upon the plan.
8. In or about the month of March, 1^96, an
agreement was entered into between the plain-
tiff and defendant in terms of which the
defendant undertook to construct a fence along
the said boundary line from the point A on the
plan to the point B, in consideration that the
plaintiff should erect a similar fence from A to
H. It was specially agreed that the fence should
consist of six wires— one wire being barbed-
run through iron posts twenty yards apart, the
wire used to be No. 7, and the laces to be of
No. 9 wire.
i. The plaintiff has duly carried out his part
of the said contract, and has duly constructed a
fence of the said description along the line A H,
but the defendant wrongfully refuses to carry
out his part of the contract by constructing a
similar fence as aforesaid along the line A B.
5. In or about the month of May, 1896, the
defendant wrongfully and unlawfully entered
upon the plaintiff's farm and constructed a
fence through a portion of the said farm ; the
poeition of the fence so wrongfully constructed
is marked by the letters C B D on the plan.
6. By reason of the defendant's wrongful tres-
pass as aforesaid, the plaintiff has suffered
damage in the sum of £100 sterling. He has
requested the defendant to remove the said
fence, bnt the defendant refuses to do so.
The plaintiff claims : {a) An order compelling
the defendant to erect a fence of the description
set out in section 8 hereof along the line marked
I A B in the plan annexed hereto, or in the alter*
98
native {b) payment of the sum of £90 ; (c) an
order compeUing the defendant forthwith to
remove the fence erecti*d by him along the line
C E D on the said plan ; id) payment of £100 as
damages ; ie) alternative relief with costs.
For a plea to the declaration the defendant
said :
1. He admits the paragraphs 1 and 2, save that
he does not admit the correctness of the rough
sketch annexed to the declaration, but craves
leave to refer to the sketch annexed to this plea,
showing the boundaries of the said farms, and
of the farm Carolus Poort adjoining them.
2. In or about the month of If arch, 1896, an
agreement was entered into between plaintiff,
defendant, and one Petrus Daniel du Toit,
owner of Carolus Poort, whereunder it was
agreed that the said farms should be fenced as
far as their common boundary, but in order to
facilitate the said fencing and to save expense,
it was agreed that between certain points marked
upon the said sketch the line of fence should not
follow the actual boundary lines, but that the
fencing should be constructed as follows : The
defendant should construct a fence between cer-
tain points on the plan, the plaintiff between
oertain other points, and the said P. D. du Toit
between other points.
3. Thereafter the defendant duly completed
his portion of the said agreement by construct-
ing a fence, fie admitted that in so doing he
entered upon the plaintiff's farm, but denies that
he trespassed, and says he went thereon with
plaintiff's knowledge and consent. Save that
he admits that the plaintiff has constructed a
fence between the points mentioned in para-
graph 4 of the declaration, the defendant denies
all the allegations in paragraphs 8, 4, 5, and 6.
Wherefore he prays that the plaintiff's claim
may be dismissed with costs.
The replication was general.
On these {headings issue was joined.
Johannes Jacobus van den Heever, the
plaintiff, said he was the owner of the farm
Schlemmer's Hoek, in the district of Hanover,
and he was in possession of an agi^eement be-
tween himself and his father by which
witness held the farm under certain obligations.
On March 30 witness and the defendant came to
a verbal agreement as to fencing the boundary
between the farms of plaintiff and defendants
It was agreed that witness was to fence from
the points A to H on the plan produced, and
that defendant was to fence from A B. The
fence was to be made in the way specified in the
declaration. He got a man named Boux to do
his portion, and for this work he had paid. He
afterwards had a conversation with John du
Toit, of Carolus Poort, as to a suggested ex-
change, but no lines were decided on. After
this witness saw the defendant in the beginning of
June. The defendant said he and his brother
John had made an exchange of the piece of
veld. Witness said he only suggested the
exchange, which was provisional upon his
father's consent, and witness held the
defendant to the line frem A to B.
At that time Boux was working on
the line from A to C. On the 6th of June they
had got as far as the point B. Defendant after-
wards offered witness a piece of veld in ex-
change, but witness said then he wanted to keep
his own. Then John du Toit proposed to settle
the dispute by buying the piece of veld defend-
ant was fencing in, but witness said he coold
not do so without the help of his father. Then
defendant said he would sooner take up the fence
and put it on the boundary line than hire the
piece of veld. Up to that time, witness had not
communicated with his father. No agreement
was come to. Afterwards notice was given to
the defendant to remove the fence and cease the
trespass. The piece of ground fenced in was
about eight morgen, and witness valued it \eTj
much as a good piece of veld for his sheep.
The ground was worth £2 lOs. a month.
Cross-examined: Witness did not supervise
the erection of the fence at the point E, and was
not present when the wire was fixed. Witness
never raised any objection to the fence whilst it
was being erected. Defendant spoke to witness
about a suggested exchange of the triangular
pieces of land upon the plan. Defendant-, how-
ever, would not give a piece equal in size to the
piece fenced in.
Be-examined: In March, 1896, witAeas
called at old Mr. Du Toit's house in Hanover.
Witness, however, could not remember anything^
being said about the exchange. Old Mr. Du
Toit said on the 4th July that he did not want
the exchange. Witness's father did not want
the exchange.
By the Court: Defendant first came on to the
ground from D to E in June. The men were
there a week. Witness allowed them to go oo,
and said nothing. They were still busy with the
fence when he told them they were trespassing.
G. P. van den Heever, farmer, in the district
of Hanover, the father of the plaintiff, said that
on June 20 his son told him all about the fence.
On Jdne 80 the parties met to settle the dispute
if possible. Defendant was present, and said
that the plaintiff had given him the piece of
ground fenced in. Witness objected, as the ex-
change was not fair.
John Boux said that all he was employed to
fence in by the defendant was from A to C.
Defendant wanted to fence around the slnit, and
99
iibd plaintifTs permissioD. Witness advised
iditBtiff not to oonsen^ to tliis, but to have a
JCTEctpQtbelaw^ tHe w^ire acroes the sluit, and
«o follow oat the ((traislit lioe. This oonversa-
tioo took place oa April SO. Witness had then
begm the work for tlie defendant Mr. DuToit
aod plaintiff and liimaelf naarked the line off.
CroBi-exammed : He lieard plaintiff sayde-
fenduit might take a detonr to g^et on to the line.
Witoeee was preeent ^rlien thej finished the
■wkfiom S to C. Witness then had further
vorktodo.
Jaa ZachartBft BoojrBen, farmer, residing in the
districi ot HanoTer, eaid lie was present at the
Bceting ofQ the 19th June. Jmn du Toit was
pre^nt, and said the question of exchange mnst
Ve MtUed -, Jan dn Toit afterwards said the de-
fendant ought to have stopped the work of
feaeiBg until the dispute was settled.
Jan du Toit then snggeeted that plaintiff should
mO the piece of land, hut defendant said the
expense ot transfer would be as much as the
land was worth. Then something wss said as
to luring, but the defendant said he would
rather take up the fence and put it on the
hoandary, Bnbeequently exchange was sug-
gested, but plaintiff would not accept the piece
of land offered by the defendant.
Petra? Jacobus dn Plerais, who resides on
plalBtifTs farm and who was present at the
sting on June 19, said there was no agree-
it eome to at that meeting as to the fence.
This closed the sTidenoe for the plaintiff.
War the defence,
I>. J. du Toit, the defendant, said that he
went to the spot with the plaintiff in April to
the line. Plaintiff said they must ride
the line. They did so, and when they got
sluit, he said they must make some
settlement Afterwards a line was agreed
vad in May witness began upon the fence
1 tbe line D and B. It was finished by the
id of May. Whilst the work was going
plsdntiff did not object uid every-
g was completely finished before
ly oibjeetion was made. The land defendant
to give up in exchange was better than
of plaintiff. Plaintiff had been using the
of ground to grase cattle for the last six
CrooB-examined: Witness was quite willing
for pI«iDtiff to take up the fence, and put it
oa the line A and B. It was easier to
cHrer plaintiff's land than to follow the
booBdary line, where sereral sluits would have
to be GiosMd Witness and Jan du Toit met to
gether and fixed the line. Witness claimed the
right to use tbe piece of ground which plaintiff
mki wMs bit.
Paste* (6th March).
The hearing of the case was resumed.
John duToit farmer, living at Carolus Poort
in the district of Hanover, deposed that he and
his brother had hired the farm from his father,
who had a life interest in it. He knew the
plaintiff, and met him in March last at
Hanover. Plaintiff wanted witness to go with
him to his father, in order to arrange some
deviation of the boundary line between the two
farms. Plaintiff wanted to exchange a small
piece of land for another on the farm
Oarolus Poort. It was arranged that his brother
Daniel should give up a comer piece in ex-
change for a piece to be given by witness. Wit-
ness afterwards went upon the ground with two
of his brothers and the plaintiff, and a line was
marked off. He knew the line fenced off by
his brother. It was the same line as was
marked off on that day. Witness was now
willing that the plaintiff should have a piece of
Carolus Poort. the same sise as that fenced in by
the brother of witness.
Cross-examined : The line C B was a difficult
line to fence, and this was the reason why the
line E D was fixed upon. This was because
of the great difficulty in fencing over the sluits
on tVe original boundary.
PetruB Daniel du Toit son of the defendant
a farmer, living at Matjesfontein, sa!d he made
the fence now in dispute, up to the point E.
The work took three weeks. There were three
people employed. During the time the fence
was being made the plaintiff came on the spot
three times. On the third occasion of plaintiff
coming he said the ends would be tied; the
fence was all right.
Hendrik van der Merwe, of Modderfontein,
who lived last year at Mati'esfontein deposed that
he worked on the fence with the last witness. H e
remembered Eeeing the plaintiff three times
while the work was going on. The flags showing
the line of fence were already there the first
time the plaintiff was there. On the third
occasion they had finished planting the poles
and were ready to tighten the wire. The
plaintiff helped to untie one of the rolls of
wire and never said anything. Witness had
never heard plaintiff make any objection to the
fence.
J. van den Heever, the plaintiff, recalled,
stated that it cost him to make the fence £36,
including poles and labour. This was on the
line C E b G.
This closed the evidence.
After argument judgment was given for the
plaintiff with costs.
The Chief Justice said: This action has a
threefold object. First to recover damages for
100
an aUefi^ed treapaBS ; seoond to compel the de-
fendaot to remove a fenee which he has oon-
Btracted on the plaintiff's land, and thirdly, to
compel the defendant to place the fence where
he had agreed by his original contract to place
it. As to the claim for trespass I am of opinion
that the plaintiff is not entitled to succeed,
because at the time when the alleged trespass
took place the fences were placed upon the plain-
tiff's land, the plaintiff aaving provisionally
consented to their being there placed, and under
the circumstances the rule ''volenti nan fit
injuria " would apply. Then as to the two next
counts, I think they may be conveniently taken
togetiier, viss., the claim to compel the defen-
dant to remove the fence, and to place it where
he originally contracted to place it. I think the
evidence is perfectly clear that at the time when
the fence was put up by the defendant it was on
the distinct understanding that the plaintiff
would come to terms with the owner of Carolus
Poort in regard to the portion of land which
the plaintiff was to get from Carolus Poort in
exchange for the portion which he gave for
Matjesfontein, aud I think both parties so
understood it. But in point of fact Matjesfon-
tein gave up nothing to the defendant. I think
we muBt take this arrangement to be conditional,
that the fence was only to become a permanent
fence in case the owners of Carolus Poort and
Bchlemmer's Hoek came to an agreement as to
the exchange of land. When it came to com-
munication with the owners of Carolus Poort it
was found that these owners refused to give up
as large a portion of land as that given up by
Schlemmer's Hoek. When the plaintiff found
ke could not get from Carolus Poort he said, we
must revert to our original agreement, and this
fence must be removed. I think tills is a posi-
tion he is entitled to take up. The fence was
placed upon his land, and the defendant must
have known it was there conditionally. He did
it at his -own risk, and when plaintiff demands
its removal the defendant is bound to remove
itw The original agreement was that there was
to be a straight line, the plaintiff
to fence one portion, the defendant the
other. I think the plaintiff is entitled to
an order upon the defendant to remove the fence
from his land, and to place it where he con-
tracted to place it. At the same time, as a
matter of equity I think it is only fair that this
judgment should be conditional on the plaintiff
paying to ihe defendant £i5, which will com-
pensate the defendant for any additional cost
incurred in the deviation. An order will there-
fore be granted for the defendant to remove the
fence from the line B C B D within one month to
the place originally agreed upon— the line C D
— upon condition that the plaintiff pay the de-
fendant £15, but failing compliance on the part
of the defendant with this order we must, of
course, give damages to the plaintiff, and the
Court will assess the damage at £90, with leave
to the plaintiff to use the materials which are
upon his land. Defendant to pay the coals.
[Plaintiff's Attorneys, Messrs. Van Zyl Se.
Buissinn^; Defendant's Att^rne)', Ous.Trollip.]
SUPREME COURT.
Before the Right Hon. Sir J. H. DH ViLL
P.C., K.C.M.G. (Chief Justice), Hon. Mr.
Justice Buchanan, and Hon. Mr. Justice
Maasdorp.]
IS THB MATTER OF TIW MINORS J 1897.
PARKER. I March 2nd.
Mr. Jones applied for authority for the leaae
for a lengthy period of certain landed property
belonging to the applicants, situate in the
dinsionof Wodehouse.
The Chief Justice said that the order would
issue on production of a telegram (the matter
being one of urgency) from ihe Resident
Magistrate that the transaction is for the benefit
of the applicants.
LKKFLKK V. HUDSON. | ^^^^^^
Agent— OommiRsion — Broker.
Whpi'f (t sale of iathfl is rofuplpt^'il
through the <i(fenry of a Itrokev who
hud been employed t>y tJte selhr as
agent to tiell the prope^i'ty^ the fact
that the ittt ending pitrchaser had^
before nu<^h snle^ atwerf^ihied from
others that the land trait fur nale^ does
not deprive such broker of hin rigid
to a commission.
This was an action brought to recover the
sum of £26 6s., due to plaintiff as commission
for services rendered as a broker in oonneotioii
with the sale of a house in Hope-street belong*
ing to the defendant.
The plaintiff's declaration alleged :
1. The parties to this suit reside in Cape
Town,
101
t Tlw plaintiff is a duly licenped broker
<inyijiK OB biisinef-B ia Cat e Towd ; the defcD-
dut IB a landed propri etor
3. Id or about the monlli of May, 1896, the ^
pluntiff was em|>lo^ed by the defendant as
Imker to pell on behalf --f the dt-fendant a
certain hoose, aituated in Hope-street, Cape
Tovn, then in the po«eeF8ion of the defendant,
i InUie event of the plaintiff finding a pur-
ehaaer for the eaid honse to the satUfaction of
tlif defendant, the defendant ngreed to pav t«
tlte plaintiff a oonimiesion of 2^ per cent, aa a
Tfvard for hie BerviceB as broker.
5. Thereafter in or al>out the month of Juno,
\!<%, the plaintiff acting as the agent of the
defendant aaaforef^aid obtained an offer from
one A. Hapbael for the E&ai<l house at the price
of £\,0».
(. Tbe plaintiff duly coniniunicated this offer \
to the defendant on or about the 29th June, i
1^6. and on or about the ^th June. 1896, the
defendant accepted the offer and Bold the Baid
property to the aaid Ra]>hael for the sum of i
£1.060 aaaforeeald and thereupon the plaintiff i
?aya he became entitled to his commipsion an I
aforepaid.
7. All things have happened all times elapsed
aoil all eonditioni l>een fulfilled to entitle the
plaintiff to claim from the defendant the sum
of £9Sfe. as commission for his services as afore-
said bat the defendant wrongfully and
unlawfallj refuses to pay the said sum of
'» or any portion thereof.
Wherefore plaintiff claimed.
Ca) Judgment in the Ruin of £2H As. as aforc'
(A> Alternative relief.
<tf^> Cobtfiof suit.
The defendant's plea was ah follows :
1. The «!cfendant admits paragraphs 1, 2, 3, 4,
'of the declaration.
?. A»- reganls paragraphs 5, (>, 7, the defendant
adtnitji that Oh or about Jane 30th, 18^6. he sold
the said house to the said Raphael for the said
sum of £i,(^ but he denies all other allega-
nations therein contained.
3L He specially denies that it was through the
agt^Dcy of the plaintiff that the said sale was
effected.
4. He says that the aaid sale was effected
through one Mrs. Meyer, who ^as the tenant of
the said hoife.
Therefore by reason of the premises he prays
that the plaintiff's claim may bedismifned with
The replication was sreneral.
On thepe pleadings issue was joined.
Mr. Graham appeared for the plaintiff.
Mr. Molteno for the defendant,
James Henry Leflfler, licensed broker. Cape
Town, said the defendant employed him as a
broker last May to sell the house in Hope-street
which was then occupied by Mri*. Myers. On
May 28 witnefs wrote to defendant, asking if
the property was for sale, and asking if defen-
dant would take £1,000 for it. Defendant
said he would allow the client of witness to
look at the property, but paid he would not
accept less than £t,b)0. Afterwards deft-ndant
said he would take £1,050 and allow witness 24
per cent, on the sale of the property. On
June 30 Mr. Raphael, of Plein-street, came
about the property, and on that day witnew
wrote to the defendant closing a s-nle at £1,050.
WitnefH received no reply and wrote again to
defendant on June 31. A day or two after-
wards defendant called at the oftice of
witness and said, " The property is pold to Mrs.
Myers." Witness then wrote demanding his
commission, but received no reply. Witness
afterwards found that Mr. Raphael had t-aken
possession of the property, and Mrs. Myers had
vacated it. Transfer was effected to Mr. Raphael
in October.
Cross-examined: Mr. Rai)hnel came to wit-
ncFS about the property.
C. M. Stevens, firat clerk to the Civil Com-
missioner of Cape Town, proved the register of
the sale of the property to Mr, Raphael in
October.
This close the plaintiff's case.
For the defence,
Benjamin D. Hudson, the defendant, said he
was the owner of the property in June, 1896.
Some time in May he was approached
by the i laintiff as to the sale of the property.
Nothing came of these negotiations. Mrs.
M3ers had been in occnpntion of the houHC, a.H
tennot, eight or niirc 5-ear.^. Witness offered the
house forsa'e to Mrs. Myers for £l,'r)0, on June
80. She told witness afterwards the house was
sold for that amount. Next day witness told
plaintiff the house wa-* sold to Mi-s. Myers.
Afterwards Mrs. Myers told him the q./j, was
Mr. Raphael Witness made Mrs. Myern a pre-
sent of £13.
Cross-examined : Witness made the present
shortly after the sale, and before receiving the
lawyer's letter. Witness received plaintiff's
letter on June .SO.
Alfred Raphael, mei*chant, Cape Town, said
he had known Mrs. Myer^i a long time. She
came to his house on June 27 and told witness
the house she lived in wa^ for sa'e for £l,f50.
and plaintiff had given her the refusai. Witness
said lie would be glad to bu}' it. Afterwards,
witness bought the proj^erty, and made Mrs.
Myers a present of ^ for the introduction.
102
¥7110688 went to Mr. Leffler jusl becaose he
happened to know him ; not because he knew
Leifier bad the Belling of the house, Witney
niight have asked plaintiff if the house wats for
sale and instructed plaintiff to write to close the
purchase.
By the Court : VVitoess went to plaintiff as a
broker.
Dinah Myers said she had been tenant of the
house for many years. Plaintiff gave her the
refusal to purchase at £1,060 about the first or
second week in June. After seeing Mr.
Raphael she told defendant she had a purchaser
for the house.
This closed the evidence.
After argument,
Judgment was given for the plaintiff, with
costs.
De Villiers. G.J. : It is admitted that the
plaintiff had been employed by the defendant
to sell the land, and that on the dCth June last.
the agency had not been determined. Accord-
ing to the declarations made by the defendant
as settler, and by Raphael as purchaser, the sale
was on that day effected by the former to the
latter. It was not directly effected and the
qceetion is through whose afcency was it done.
It was not done through the agency of Mrp.
Myers, the lessee of the property, for all she did
was to inform Raphael that the property was
for sale. It is true that she had the right of
preemption, but she never exercised that right
for I he property was transferred directly from
the defendant to Raphael. The person through
who re agency the sale was effected was the
plaintiff. It is true that it was by mere
accident that Raphael discoveied that the
plaintiff was ag«.nt for the sale, but after this
discovery the communications for the purchase
took place with the plaintiff as the defendant's
agent. The plaintiff is in my opinion enticled
to his commission and the judgment must
accordingly be for the plaintiff with costs.
[Paintiff's Attorney, J. Ayliff; Defendant's
Attorneys, Messrs. J. G. Berrange k Son.]
f 1897.
HBYDENBTCH V. KIRBY. < March 2nd.
(.Juoe 8th,
This was an action brought by Benjamin
Godlieb Heydenrjch against Brandon Kirbyfor
an account, payment of portion of profits under
certain contracts, delivery of tools, and interest,
Tlie plaintiff's declaration alleged :
1. The parties to this suit reside in Gape
Town.
2. Duiing the year 1814 the defendant, who is
A contractor, obtained frpm the Town Gouncil
of Gape Town certain contracts for work in
connection with the drainage of the city of
Gape Town.
3. Thereupon the defendant requested the
plaintiff to advance a sum of money to him to
enable the defendant to carry out his said ood-
tracts.
4. On or alout the 2nd July, 1891, an agree-
ment in writing, marked A, was entered into
between the plaintiff and defendant, which the
plaintiff annexes to this declaration and crairee
leave to refer thereto.
6. 1 hereafter the defendant obtained other
and further contracts from the Town Gouncil
and other persons in aduition to those referred
to in the agreement (A), and the plaintiff, mt
the request of the defendant, advanced the
defendant further sums of money to be ex-
pended upon the said contracts under the terms
and conditions in the said agreement (A).
6. Between the 22nd July, 1894, and February,
1896, the plaintiff has advanced to the defen-
dant the sum of £9.071 lis. 3d. under the said
agreement, and the plaiotiff has received from
the defendant the sum of £9,212 lOa. lOd.
7. It became and was the duty of the defen-
dant under the said agreement (A) to render
the plaintiff a full and true account, supported
by vouchers, of all moneys received and ex-
pended by him in connection with the said
contracts with the Town Gouncil and othent,
and of all profits made by him under the said
contracts ; and to pay over to the plaintiff one-
third of the profits as aforesaid, and to deliver
and hand over to the plaintiff all tools and
plant used in connection with works under the
said contracts.
8. The plaintiff further says that the defen-
dant is indebted to him in the sum of
£24 Os. lOd., being for interest on certain
moneys advanced to the defendant by the plain-
tiff at the special instance and request of the
defendant as will more clearly appear from the
account (marked B) annexed to this declara-
tion.
9. All things have happened, all timee
elapsed, and all conditions fulfilled to entitle
the plaintiff to claim from the defendant n
full and true account, supported by vouchers of
all moneys received and expended by him in
connection with the said contracts with the
Town Gouncil and others, and of all profita
made by him thereunder, and for payment of
one-third of the said piofits; delivery of the
tools and plant referred to in the said agree-
ment (A), or payment of their value, the sum of
£200; payment of the sum of £24 Ob. I'M.
referred to in the last preceding paiagraph of
this declaration; but the defepdanti ttiougU
103
nqviftcd so to dow ne^lecto and refoees to
nder the said account^ pi^T over the eaid pro-
fits, ddWer the said tools or tfaeir value and pay,
thenmoC il24 Ob. lOd. ms aforesaid
Whmfore the plaintlfE prays :
(<)That the defendant maj be ordered to
Ridfer to the plain tlif a full and true aooonnt,
■|i|nited by TouclierB, of all mon^s received
iBd expended by bim in oonnection with the
aidoontractB with ilie Town Council of Cape
Tova and others, and of all profits made by
hia under the ea\d oontracta.
(ft) That the defendant may be ordered to pay
him one-third of the aaid profits made under
the ta\d contracts.
(c) ¥or an order compelling the defendant to
d^ver to the plaintiff all tools and plant
referred to in agreeihent A or to pay him the
vahse thereof, the snm of £20(>.
id) ¥or iudgment in the sum of £24 Ob. lOd.
as aforesaid,
(r) Altemattre relief.
(/) Costs of suit.
The annexuie A referred to was as follows :
Memorandum of an agreemeut made,
entered into, and concluded between Brandon
Kliby and Benjamin Godlieb Heydenryoh.
And the said parties hereto declare : whereas
Srandon Kirby has tendered and obtained the
eonteact for ezcaratioos for main drainage in
Staal Plein, Avenue Terrace, BIyth-street, and
actoBB Government Gardens from the Town
<>oaiicil of the dty of Cape Town, and whereas
the amid Brandon Kirby is in need of funds for
the |.urpose of carrying out the above contract
aaad a|yplied to Benjamin Godlieb Heydenrych
for encfa funds not exceeding the sum of two
Imndred pounds sterling, and whereas the said
kmin Godlieb Heydenrjch has agreed to
such funds not exceeding two hundred
sterling upon condition: (a) That the
Brandon Kirby shall pay over to
ndd Benjamin Godlieb Heydenrych
i consideration for the eaid loan,
sthird (i) of the profits derived under
the said contract without holding the said
Benjamin Godlieb Heydenrych responsible for
any loesea. (b) That the said Brandon Kirby
shall at ooee hand over to the raid Benjamin
Godlieb Heydenrych, as security for the said
advanee, eadi and every one of the above
ce ntoatfts with the said Town Council, and also
gnat a power-of -attorney to receive all such
moneys as may become due and payable under
the aaid contracts by the said Town Council
as aforvsaid. (<?) That all tools, &c., used in
ike canyittg on and completing the said con-
trmd, shall remain the property of the iaid
J^^iaoiin Godlieb Heydenrych. Now there*
fore, these presents witnesaeth that the parties
hereto for themselves, their heirtt, executors,
administrators, and assigns have contracted, and
agreed as follows, to wit :
1. The said Benjamin Godlieb Heydenrych, in
consideration of the presents aforesaid, agrees to
advance such sum or sums of money as may be
required to pay the wages of the labourers
engaged on the above works weekly Irom time
to time during the first three weeks in each and
every month as the work proceeds, and also
such sums as may be required to purchase the
necessary tools which on the whole, during the
whole period on which Fuch contracts are to be
carried out^ shall not exceed the sum of two
hundred pounds.
2. That the said Brandon Kirby shall cede,
assign, transfer and hand over to the said
Benjamin Godlieb Heydenrych, each and every
one of the said contracts with the Town Council
of Cape Town, as security for the advances
aforesaid, and fuithermore grant his power*of-
attomey, irrevocable and in rernmum^ (o enable
the said Benjamin Godlieb Heydenrych to
recover such amounts as may be due in the
fourth week of each and every month, from the
payments received from the said Town Council,
on the fourth week of every month under the
said contracts. That the said Benjamin Godlieb
Heydienrych shall be allowed to deduct the sums
advanced during every three weeks in each
month, from the payments received from the
said Town Council on the fourth week of every
month under the power-of-attomey aforesaid.
That the baUnoe, after aforesaid deductiona
shall be kept by the said Benjamin Godlieb
Heydenrych, at the call of Brandon Kirby, for
division as aforementioned at the completion of
the said contract
That the said Brandon Kirby shall carry out
and complete the hereinbefore mentioned con-
tra 
